In late May 2015, the U.S. Department of Labor (DOL) issued its long-awaited new FMLA forms. It was hoped that the new forms, which do not expire until May 31, 2018, would contain multiple changes clarifying long-standing issues regarding genetic information, spousal coverage, and lack of clarity in the certification process.

What changed

Other than the new expiration date, the only substantive change to the forms is a brief reference to the Genetic Information Nondiscrimination Act (GINA) in the new WH-380E, 380F, 385, and 385V medical certification forms. According to the GINA regulations, if an employer provides a safe harbor notice with the request for medical certification, any receipt of genetic information in response to the request will be considered inadvertent and will not violate GINA.

In the new FMLA forms, the instructions to healthcare providers (section III) now state:

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(b).?

What to do about it

Unfortunately, the new GINA language on the forms falls far short of the full GINA safe harbor statement, which employers have been including with requests for FMLA medical certification. The full GINA safe harbor statement provides:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

Because the new FMLA certification forms do not contain the level of detail on GINA and its requirements and definitions that the safe harbor statement contains, FMLA experts are currently recommending that employers continue to include the GINA safe harbor statement with requests for medical certification, just as they had prior to the issuance of the new forms.

BLR will report further on the new forms if more information becomes available. But for now, get rid of those old, outdated FMLA forms and start using the following new 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-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 Covered Servicemember—for Military Family Leave
• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

To download copies of DOL’s new forms, go to DOL’s website at http://www.dol.gov/whd/fmla.