Employers with 50 or more employees in 20 or more
workweeks in the current or preceding calendar year, including joint employers
and successors to covered employers, must comply with the Family and Medical
Leave Act ("FMLA"). The FMLA requires covered employers to comply
with various notification requirements, and allows employers to obtain medical
certifications from employees requesting leave. The Department of Labor
("DOL") has authored various form
notices and certifications, which employers may choose to use.
The DOL-drafted forms expire on January 31, 2012.
New forms, which have been submitted to the United States Office of Management
and Budget, are not likely to be approved before the old forms expire.
Nevertheless, under the law, expired forms may continue to be used while new
forms are awaiting approval.
But - and this is
important - the soon-to-expire forms do not include the "safe harbor" language
under the Genetic
Information Nondiscrimination Act, which tells employees and their medical
providers that they should not provide "genetic information" when responding to
a request for certification.
define "genetic information" to mean information about:
(i) An individual's genetic tests;
(ii) The genetic tests of that individual's family
(iii) The manifestation of disease or disorder in family
members of the individual (family medical history);
(iv) An individual's request for, or receipt of, genetic
services, or the participation in clinical research that includes genetic
services by the individual or a family member of the individual; or
(v) The genetic information of a fetus carried by an
individual or by a pregnant woman who is a family member of the individual and
the genetic information of any embryo legally held by the individual or family
member using an assisted reproductive technology.
The specific "safe harbor" language that should be
included with any request for FMLA certification (or any request for medical
information) to employees or their medical providers 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 may be obtained by an employer
without violating GINA when it requests family medical history to comply with
the certification provisions of the FMLA, state or local family leave laws, or
pursuant to a policy that permits the use of leave to care for a sick family
member and that requires all employees to provide information about the health
condition of the family member to substantiate the need for leave. In
this circumstance, the above-quoted "safe harbor" language is not required (but
may be included).
This is not a change in the law. However, given the
questions that have come up regarding the use of expired DOL forms, we thought
it was an opportune time to remind our readers of GINA, and how to best protect
themselves from inadvertent violations.
Visit Employment Matters
for additional insights from Martha J. Zackin of Mintz Levin's Boston office.
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