On May 27, 2015, the Department of Labor (DOL) published new Family Medical Leave Act (FMLA) notices and medical certification forms. The only material change is a reference to the Genetic Nondiscrimination in Employment Act (GINA) in the revised instructions for healthcare providers. The DOL has added the following simple instruction about GINA to healthcare providers certifying serious health conditions under the FMLA:
“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).”
GINA obligates employers to comply with confidentiality requirements regarding information about an individual’s genetic tests and the genetic tests of the employee’s family members, as well as information used to determine whether someone has an increased risk of contracting a disease, disorder or condition in the future, such as cancer. Employers must keep any medical information confidential under both GINA and the Americans with Disabilities Act (ADA).
Many employers already use the “Safe Harbor” disclaimer set forth in the Equal Employment Opportunity Commission’s (EEOC) regulations when requesting medical records from providers.
The “Safe Harbor” disclaimer is as follows:
“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.”
According to the EEOC’s regulations, if this “Safe Harbor” disclaimer is used by employers, then any receipt of genetic information in response to a medical information request will be deemed inadvertent and not a GINA violation. The new FMLA forms do not include this Safe Harbor disclaimer. For this reason, employers may want to include the EEOC’s detailed Safe Harbor disclaimer with any medical inquiry form, including the revised FMLA forms.
The new forms can be found below:
- 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 ConditionWH-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