Many employers rely on and use the pre-printed forms published by the U.S. Department of Labor (“DOL”) when fielding and responding to employee requests for leave under the federal Family Medical Leave Act (“FMLA”). Many of these same employers, however, do not realize that certain DOL forms have listed “expiration dates” that may lead to confusion as to the continued viability and use of those forms.
For example, the DOL’s FMLA “Designation Notice” and “Notice of Eligibility and Rights and Responsibilities” forms are set to “expire” on January 31, 2012. (Under federal law, the Office of Management and Budget’s approval of the DOL’s FMLA forms can last a maximum of three years.) Although the OMB has allowed the DOL to continue using these forms pending approval of updated forms, now is a good time for all employers to make sure their FMLA forms conform to changes in the law.
One of the most-recommended updates to FMLA forms is adding the “safe harbor” provision from the Genetic Information Nondiscrimination Act (“GINA”). GINA makes it unlawful for covered employers to request or require genetic information of an individual or family member. To comply with GINA, employers’ FMLA forms seeking medical certification of an employee’s or family member’s serious medical condition and fitness for duty certifications should explicitly state that the employer is not seeking, nor should medical providers provide, any genetic information as defined by GINA.
While it is not presently known whether the soon to be updated DOL forms will include the GINA safe harbor provision, all covered employers should strongly consider updating their FMLA forms to include GINA’s safe harbor language. If you have any questions about the FMLA or GINA, please contactKenneth S. Kornacki at (412) 918-1109 or kkornacki@metzlewis.com.
