On May 27, the U.S. Department of Labor (“DOL”) published updated model Family and Medical Leave Act (“FMLA”) notices and certification forms, making them available for use as of May 31, 2015, on the DOL’s website: http://www.dol.gov/whd/fmla/.
Employers are not required to use the DOL’s model notices and certification forms, but employers that choose to use the DOL’s model forms must discontinue using older versions of the DOL’s model forms immediately. The new forms are valid through their expiration date of May 31, 2018.
The most notable update made by the DOL concerns the inclusion of specific references to the Genetic Information Nondiscrimination Act (“GINA”), which is a federal law enforced by the Equal Employment Opportunity Commission (“EEOC”) that prohibits employers from discriminating against employees/applicants on the basis of their genetic information and imposes restrictions on employer access to and disclosure of genetic information.
Employers will not be in violation of GINA if they receive genetic information from a health care provider (HCP) in response to an FMLA-compliant request for medical information.
However, the EEOC, in its implementing regulations, requires employers to affirmatively instruct HCPs not to release genetic information to employers. GINA provides model language for employers to use to effectuate such notice to HCPs. Interestingly, the DOL’s updated notices and certification forms do not include the EEOC’s model notice language.
School districts using the DOL’s model FMLA notices and forms are required to begin using the updated notices and forms immediately, and should consult with legal counsel to determine whether their GINA notices to HCPs are sufficient to avoid violations of GINA due to an HCP’s inadvertent disclosure of genetic information in response to an employer’s request for medical information. School districts utilizing non-DOL forms must modify their forms to comply with current law.
FMLA issues continue to grow in number and complexity. Contact John DiJohn with your FMLA inquiries.
