The U.S. Department of Labor (DOL) recently posted updated versions of its model Family and Medical Leave Act (FMLA) notification and certification forms, effective through February 28, 2015. The updated model forms are as follows:¹

• Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)
• Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
• Notice of Eligibility and Rights & Responsibilities (WH-381)
• Designation Notice (WH-382)
• Certification of Qualifying Exigency for Military Family Leave (WH-384)
• Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave (WH-385)

The forms do not contain any substantive changes, but the previous forms expired December 31, 2011; so, going forward, employers who use the DOL forms should begin utilizing the new ones. In the alternative, employers using their own forms may continue to do so, provided they do not ask for more information than required by the FMLA.

Notably, the new forms still do not include the “safe harbor” language recommended by the Equal Employment Opportunity Commission’s (EEOC) regulations, to prevent the disclosure of genetic information as prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Thus, regardless of whether employers use the DOL forms or their own forms, they should always add the following language in requests for employee health-related information to avoid liability under GINA for an inadvertent disclosure of genetic information:

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 any individual or family member of the individual, except as specifically allowed by this law. 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.²

New GINA Regulations

Last month, the EEOC implemented a rule requiring that employers retain all personnel and employment records for potential investigations into compliance with GINA. Title II prohibits discrimination against employees or applicants on the basis of genetic information. Specifically,

employers may not request, require, purchase or disclose the genetic information of an applicant or employee, except under very limited exceptions.

The EEOC’s new rule takes effect on April 3, 2012, but existing employers with 15 or more employees will not need to create any new documents. Nor does the rule impose a reporting requirement. The retention requirements will be as follows:

• Private employers must maintain personnel and employment records for one year.
• Educational institutions and governments must retain such records for two years.
• Labor unions must retain all membership and referral records for one year.

Apprenticeship committees must retain all apprenticeship records for two years.Further, if an employee files a charge of discrimination under GINA, the employer must retain all records relating to the charge until the action is complete. Employers should note that this record retention requirement is the same as under the Title VII regulations, so this rule will not place a heavy additional burden on employers. Clients are encouraged to contact Vedder Price with any questions.

¹ All forms can be found at http://www.dol.gov/whd/fmla/.
² 29 C.F.R. § 1635.8(b)(1)(B).

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