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DOL issues updated FMLA forms

by Amanda Shelby

The U.S. Department of Labor (DOL) issues forms for employers to use in the administration of Family and Medical Leave Act (FMLA) leave. On the heels of the old forms expiring earlier this year, the DOL has issued new forms. The revisions update the expired forms to reference the Genetic Information Nondiscrimination Act (GINA) and recent regulations related to military service leave. 

Overview of the changes
WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition. Section 1 of the form now references GINA. Among other things, GINA prohibits employers from discriminating against job applicants or employees based on genetic information. The new WH-380-E states that an employer must maintain records “in accordance with 29 C.F.R. § 1635.9, if [GINA] applies.” Essentially, this change acknowledges GINA’s requirement that employers maintain information about employees’ genetic information in medical files separate from personnel files and treat the information as confidential medical records.

Section 3 of the new form also references GINA, stating that medical providers must “not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services as defined in 29 C.F.R. § 1635.3(e), or the manifestation of a disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).” This language mirrors—but is not identical to—GINA’s statutory safe-harbor language, which states:

[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.

If you are not using the DOL’s forms, your medical certification form—and other forms requesting medical information—should bear this language.

WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition. This form has also been revised to reference GINA. The revisions are virtually identical to those made to the WH-380-E.

WH-381: Notice of Eligibility and Rights and Responsibilities. Although the DOL made some stylistic changes to this form, only one revision of any substance appears to have been made. Part A, which previously referenced a family member’s “active duty or call to active duty status in support of a contingency operation as a member of the National Guard or Reserves,” now refers to a family member’s covered active duty status with the Armed Forces.” Those revisions align the language on the form with the language in the DOL’s 2013 regulations.

WH-384: Certification of Qualifying Exigency for Military Family Leave. As with the WH-381, this form also now references “covered active duty status” rather than “active duty status in support of a contingency operation.” It also explicitly requires an employee to “attach the indicated document to support that the military member is on covered active duty or call[ed] to covered active duty status.”

The revised WH-384 makes clear that an FMLA leave request can be supported by “a document confirming the military member’s Rest and Recuperation leave” or “a document confirming an appointment with a third party, such as a counselor or school official, or a staff at a care facility.”

WH-385: Certification for Serious Injury or Illness of a Current Servicemember. In addition to referencing GINA, the revisions to this form include updating the definitions of “health care provider” and “serious injury or illness” to comport with the expanded definitions of those terms in regulations issued by the DOL in 2013.

WH-385-V: Certification for Serious Injury or Illness of a Veteran for Military Caregiving Leave. As with several of the aforementioned forms, the changes to this form include references to GINA. The form notes that an employer must act “in accordance with 29 C.F.R. 1634.9, if [GINA] applies” and instructs a medical provider not to “provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), or genetic services, as defined in 29 C.F.R. 1635.3(e).”

Bottom line
Update your FMLA forms. If you use the DOL’s forms, check the expiration date in the upper right-hand corner. The new forms, which can be found on the DOL’s website at www.dol.gov/whd/fmla/2013rule/militaryforms.htm, will bear an expiration date of May 31, 2018. If you don’t use the DOL’s forms, review your forms to ensure that they comply with both GINA and recent FMLA developments.

Amanda Shelby is an attorney with Faegre Baker Daniels LLP in Indianapolis, Indiana. She may be contacted at amanda.shelby@faegrebd.com.