June 26, 2015

Labor Department Revises FMLA Forms

The United States Department of Labor recently revised many of the forms it recommends employers use to comply with the Family and Medical Leave Act (FMLA). The most significant changes add references to the Genetic Information Nondiscrimination Act (GINA) that will assist employers in complying with GINA.

The new FMLA forms can be found on the Labor Department website. These forms can be identified by the expiration date of 5/31/2018 stated in the upper right corner of the first page of each form.

In many cases, GINA prohibits employers from obtaining or using genetic information. The definition of genetic information is broad and includes the manifestation of disease or disorder in family members. We discussed GINA requirements in a previous legal update, “EEOC Publishes Final Rule on GINA.” GINA provides that employers do not violate this law by inadvertently obtaining genetic information. The GINA regulations provide safe-harbor language for employers to use when requesting medical information in order to inform health care providers that they are not seeking genetic information. The use of this language positions an employer to show that any genetic information that was sent to it contrary to this language was inadvertently obtained. 

Although the Labor Department did not incorporate the specific safe-harbor language from the GINA regulations, the language that it did add to the FMLA forms is similar in meaning to the safe-harbor language. Thus, use of the forms should help employers show that any acquisition of genetic information through the FMLA process was inadvertent.

The forms for leaves related to military service have been revised to reflect language changes that were made in the regulations several years ago.

Employers should start using the new FMLA forms as soon as possible.

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