In February 2015, the Family Medical Leave Act (FMLA) forms used by employers in connection with employee leave expired. Since that time of new FMLA forms Incorporate Reference, the U.S. Department of Labor (DOL) has issued new versions of the forms with validity periods expiring on a month-to-month basis. The wait for the finalized forms is over! The DOL has finally issued new forms that will not expire until the Spring of 2018.
The new FMLA forms are essentially unchanged, with one key exception: they now directly reference the Genetic Information Nondiscrimination Act (GINA), which limits collection of data on hereditary health conditions that could be used to discriminate against employees. GINA also creates a safe harbor from liability for employers that include certain safe harbor language in any request for medical information about an employee. If an employer that includes the safe harbor language in a request for medical information subsequently receives genetic information, the employer’s receipt will be deemed inadvertent, shielding the employer from liability.
However, it should be noted that the DOL declined to incorporate the GINA safe harbor language in its new forms. Instead, the DOL adopted a watered-down version that may not provide as much direction to healthcare providers as is needed. Notwithstanding the DOL’s decision to forgo adopting the GINA safe harbor language directly into the new forms, employers should consider modifying the DOL’s forms to include it in order to minimize GINA liability.
If you would like us to develop forms including the specific GINA safe harbor language for your business, or have any questions about FMLA or GINA, please do not hesitate to contact Dannae Delano, Karen Milner, Chris Sanders, Whitney Cooney, or Jamie Westbrook.
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