DOL publishes new FMLA model forms

While most of us were enjoying our Memorial Day holiday, the Department of Labor  was busy publishing new versions of its model FMLA notification and certification forms, which will be effective until May 31, 2018.  This resolves the three month cliff-hanger some may have been experiencing since February 28, 2015 when the former model forms indicated they had expired. The Family and Medical Leave Act and attendant regulations place severe restrictions on employers regarding the types of medical information an employer can seek to support leave requests under that statute, as well as the types of information employers must share with employees making such leave requests.  Rather than risk crossing some line, or failing to fulfill an obligation, most employers have chosen to use the 'model' forms the Department of Labor has promulgated under that law. The new model forms are virtually identical to the previous versions with one noteworthy difference: The new medical certification forms now reference the Genetic Information Nondiscrimination Act ('GINA') by including the following warning language for health care providers:

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee's family members, 29 C.F.R. § 1635.3(e).

Many employers already include GINA disclaimers along with their FMLA forms, sometimes in cover memos or cover letters.  Often, the employers' GINA language is more straightforward and forceful than the sentence the DOL added to the new model forms.  After all, how many health care providers have access to the provisions of the Code of Federal Regulations referenced in the DOL's new language, let alone are going to take the time to see what the regulations say?  Because compliance with GINA is critical, we recommend that employers continue to use GINA disclaimers despite the DOL's revisions to the model FMLA medical certification forms. Links are provided below to the new forms, all of which are effective through May 31, 2018:

• 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-381 Notice of Eligibility and Rights & Responsibilities

• WH-382 Designation Notice

• WH-384 Certification of Qualifying Exigency For Military Family Leave

• WH-385 Certification for Serious Injury or Illness of Current Servicemember   for Military Family Leave

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

If you have any questions regarding the DOL's new FMLA forms or the use of GINA disclaimers, please contact a member of Dickinson's employment law group.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.