Untit FMLA Provider Certifications Update and Suggested GINA Language

Attention business owners with over fifty employees - new FMLA forms were published this year with a few minor changes by the DOL. Although employers are not required to use these forms, it is advisable in order to ensure compliance with the FMLA. However, as is often the case with form use, certain additions should be made to these forms prior to use.

Substantive changes made by the DOL include statements attempting to comply with GINA (Genetic Information Nondiscrimination Act) in the Health Care Provider Certifications, which instruct healthcare providers not to provide information about genetic tests, genetic services, or the manifestation of disease or disorder in the employee’s family members.

GINA regulations provide their own safe harbor language that employers should be advised to use whenever requesting an employee’s medical condition, or health information for family members, 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.

Employers should include this safe harbor language in their FMLA forms, including the forms updated in 2015, by attaching this typed statement to the Form WH-380-E.by attaching this typed statement to the Form WH-380-E.

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