DOL Publishes New FMLA Forms

The Department of Labor (DOL) has recently updated its model FMLA forms.  The new forms expire on May 31, 2018 and can be downloaded here. There are few material differences between the old and new forms, as the only changes involve references to the Genetic Information Nondiscrimination Act (GINA).  For instance, the DOL added the following language to the medical certification form for the employee’s own serious health condition (Form WH-380-E):  “Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635(f), or genetic services, as defined in 29 C.F.R. § 1635(e), or the manifestiation of a disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”  The DOL also added similar language or references to GINA in the other certification forms (such as WH-380-F, WH-385, and WH-385-V), such as referencing GINA when discussing employers’ recordkeeping obligations. These changes are hardly ground-breaking.  For years, we have advised employers to include GINA disclaimers in their FMLA paperwork that closely track the “safe harbor” language provided in the GINA regulations, which serves to protect your company from liability if it inadvertently receives genetic information.  While we can only speculate as to why the DOL didn’t include the same, GINA-approved “safe harbor” language in its new FMLA forms, we nevertheless recommend that companies continue to include the GINA “safe harbor” language we previously discussed in their FMLA materials.- Liz Schartz and Barbara-Ellen Gaffney, Thompson & Knight LLP