The Department of Labor’s (DOL) prior set of forms for the Family and Medical Leave Act (FMLA) expired at the end of 2011. Most employers expected that the DOL’s newer forms, which can be found here, would comply with the applicable laws. Unfortunately, the DOL’s new FMLA forms, which state that they are valid through February 28, 2015, do not comply with the Genetic Information Nondiscrimination Act (GINA).
Although GINA generally prohibits employers with 15 or more employees from requesting or requiring “genetic information” from an applicant or employee, there is a safe harbor for employers who inadvertently recieve genetic information in response to a lawful request for for medical information, such as for FMLA purposes.
Employers who lawfully request medical information from a health care provider for FMLA certification purposes should include the following recommended “safe harbor” language found in the GINA regulations when making a request:
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 employees and their family members. In order 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.
Employers who use this language and still recieve genetic information from a health care provider will be deemed to have recieved the information inadvertently.
Employers should realize that they cannot always rely on government forms. Employers should add the GINA “safe harbor” language to any requests for medical information under the FMLA in order to avoid potential liability for GINA discrimination claims. The failure to do so leaves an employer at risk for possible discrimination under GINA, depending upon the type of information recieved in response to such a request.