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DOL Releases Updated FMLA Forms For Immediate Use

March 6, 2012

By Kathryn M. Hindman

FMLA UPDATE

The United States Department of Labor has finally “updated” its model Family and Medical Leave Act certification and notification forms. The model FMLA certification and notification forms in place at the start of 2012 still carried an expiration date of December 31, 2011. In the first few weeks of the year, the DOL said employers could continue to use those outdated forms.

The DOL now has released updated forms that will not expire for three more years. As updated, the new forms carry an expiration date of February 28, 2015, which is displayed in the upper right corner. Employers covered by the FMLA may use the DOL forms directly in their organizations or they may choose instead to create their own versions using the DOL forms as models.

The DOL model FMLA forms, updated with 2015 expiration date, are:
 

Unfortunately, the updated versions do not include any substantive changes; the update is limited to a change in the expiration date. It is somewhat of a surprise that the DOL did not use this opportunity to fix a pair of key shortcomings on its FMLA forms. The shortcomings, which may be addressed in by the DOL later this year, include a failure to address the 2010 military family leave amendments and a failure to address the Genetic Information Nondisclosure Act.
 
  1. The additional FMLA rights created by the 2010 military family leave amendments.
On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (2010 NDAA). Section 565 of the 2010 NDAA amended the FMLA’s military family leave entitlements by expanding coverage for (a) “qualifying exigency” leave to eligible employees with covered family members in the Regular Armed Forces who are called to duty in a foreign country, and (b) “military caregiver leave” to eligible employees who are the spouse, son, daughter, parent, or next of kin of certain veterans with a “serious injury or illness”. DOL’s updated forms do not account for these changes.
 
  1. The “safe harbor” privacy language required by GINA.
Pursuant to the Genetic Information Nondiscrimination Act of 2008, an employer who requests medical information from employees must instruct health care providers not to collect or provide any genetic information about the person. GINA regulations provide that when an employer receives genetic information in response to a request for FMLA leave (or similar state leave), the employer’s receipt will not be in violation of GINA, so long as the employer has affirmatively warned the individual and the health care provider not to provide genetic information.

The EEOC has suggested that employers add the following language to any form that requests health-related information from their employees. In order to comply with GINA, an employer should either add language to its FMLA medical certification forms or attach the “safe harbor” provision to its certification forms.

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 an 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.

Where an employer provides this type of warning and follows the other GINA rules, the EEOC says that “any genetic information the entity acquires will be considered inadvertent” and not in violation of GINA. For more information about GINA, see our November 23, 2009 Bullard Alert.

According to the Oregon Bureau of Labor and Industries, Oregon employers covered by the Oregon Family Leave Act may use the DOL serious health condition forms, as well as the DOL notice forms. Oregon employers should note, though, that DOL’s forms do not mention OFLA rights, which are considerably more employee-protective.

For employers who like forms, Bullard Law has incorporated OFLA rights and obligations into its FMLA/OFLA and OFLA-only Starter Kits. The FMLA changes and GINA safe harbor notice are incorporated into the current Starter Kits, complimentary to clients.

Bullard Law will continue to follow and report on modifications to the FMLA and the OFLA. Please also feel free to contact us with any questions or concerns about any other employment, labor relations, and employee benefits issues. 
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