DOL Updates FMLA Forms to Include GINA “Safe Harbor” Language

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By: Karen L. Piper

 

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from soliciting or using genetic information in employment decisions, among other requirements.  The Equal Employment Opportunity Commission (EEOC), which enforces GINA, issued regulations in November 2010 which recommended “safe harbor” language employers could use when requesting medical information in connection with an employee’s request for accommodation under the Americans with Disabilities Act (ADA) and/or for FMLA leave for the serious health condition of the employee or family member.

The Department of Labor (DOL) just incorporated GINA safe harbor language in the following FMLA medical forms:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL also revised the expiration date on the following forms but did change their substance:

WH-381 Notice of Eligibility and Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency For Military Family Leave

The new FMLA forms are approved for use through May 31, 2018.  Because of the safe harbor language, employers should begin using the new forms immediately.  The updated forms are available at www.dol.gov/whd/fmla/.

Employers with questions about GINA, FMLA or ADA should consult experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office.  She can be reached at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2015.