Employers Should Review and Update Their FMLA Forms in Light of New Model Forms Published by the U.S. Department of Labor

The U.S. Department of Labor (“DOL”) has published new model forms that employers may use to comply with certain notice and certification requirements under the Family and Medical Leave Act (“FMLA”).  These forms are available on the DOL’s website, at:

• 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 Condition
• WH-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 a Current Servicemember — for Military Family Leave
• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The new model forms are similar to the prior set of DOL model forms, with several minor changes, including:  

1.  The expiration date of the forms has been updated to provide that the forms are valid through May 31, 2018.

2.  The medical certification forms now include brief references to the Genetic Information Nondiscrimination Act of 2008 (“GINA”), a law protecting against certain requests for, and use of, genetic information in employment decisions.  (See WH-380-E, WH-380-F, WH-385, WH-385-V.)  For example:

a.  The certifications now remind employers that records and documents relating to medical certifications, recertifications, or medical histories of employees or employees’ family members created for FMLA purposes must, among other things, be maintained as confidential medical records “in accordance with 29 C.F.R. § 1635.9”, if GINA is applicable (i.e., the GINA regulation regarding confidential storage and limited disclosure of genetic information).

b.  The certifications also advise health care providers completing the forms to refrain from providing information about “genetic tests” or “genetic services.”  Additionally, in the certification completed for an employee seeking leave due to his or her own serious health condition, the health care provider is also advised to refrain from providing information regarding “the manifestation of disease or disorder in the employee’s family members.”  (See WH-380-E.)

Employers that use the DOL’s model forms to fulfill their notice and certification obligations under the FMLA should use the DOL’s updated set of model forms going forward.  Employers that have created their own forms based on the DOL’s model set of forms should review the updated DOL model forms and make any necessary updates to their own forms.  

Additionally, in light of the new certification forms’ brief and limited instructions against providing genetic information, we recommend that, at the time employers provide employees with the medical certification forms, they continue to provide a GINA disclaimer (also referred to as a GINA addendum or GINA safe harbor).  A GINA disclaimer is a document containing language from the GINA regulations, which provides detailed instructions against providing genetic information.  If an employer provides the individuals and/or health care providers from whom it is seeking medical information with this disclaimer (or similar language) and subsequently receives genetic information in response to its request, such receipt will be deemed inadvertent, and will not violate GINA’s prohibition on requesting or requiring the disclosure of genetic information.  The GINA disclaimer set forth in the regulations provides 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.

Please do not hesitate to contact any of our attorneys if you have any questions regarding the new FMLA forms, the GINA safe harbor disclaimer, or the procedures generally for providing notices and requesting certifications under the FMLA.