The U.S. Department of Labor ("DOL") recently issued "updated" Family and Medical Leave Act ("FMLA") model notices and medical certification forms. The prior notices and forms expired on December 31, 2011, but employers may now use the following DOL model notices and forms through February 28, 2015:
- Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E);
- Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F);
- Notice of Eligibility and Rights & Responsibilities (WH-381);
- Designation Notice (WH-382);
- Certification of Qualifying Exigency For Military Family Leave (WH-384);
- Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave (WH-385).
At this time, it does not appear as though the DOL has made any substantive changes to these model FMLA forms. In fact, the only modification that seems to have been incorporated by the DOL and the Office of Management and Budget ("OMB") is the new 2015 expiration date. These forms do not address important changes that have occurred since the FMLA was amended in November 2008. Specifically, these forms do not incorporate changes brought about by the 2010 amendments pertaining to military family leave (i.e., changes in exigency leave, the inquiry of a servicemember’s past military service given the expanded definition of a "covered servicemember," etc.).
In addition, the DOL’s forms do not contain the proposed "safe harbor" language that employers should insert on particular FMLA medical certification forms (e.g., WH-380-E) in order to avoid the disclosure of genetic information under the Genetic Information Nondisclosure Act of 2008 ("GINA"). In our January 14, 2011 blog post, we issued a reminder that employers may inadvertently obtain genetic information when they request that health care providers complete certification forms to support a leave under the FMLA or an accommodation request under the Americans with Disabilities Act ("ADA"). The GINA regulations, however, created a safe harbor for employers who integrate specific language (which is set forth in our January 14, 2011 blog post) into their requests for medical information in order to certify an employee’s own serious health condition under the FMLA. In light of the fact that the DOL’s FMLA model forms have not been amended to incorporate the GINA safe harbor language, we continue to recommend that employers take their own proactive measures to add and/or use the GINA safe harbor language when requesting medical information to certify an employee’s own serious health condition under the FMLA.
It is entirely possible that the DOL will propose and/or make substantive changes to the FMLA model forms prior to February 2015, particularly because the DOL published its proposed changes to the FMLA regulations on February 15, 2012. The proposed changes to the regulations address topics such as military family leave, calculation of leave usage, and FMLA eligibility for flight crews. In the meantime, employers are encouraged to use the most recent published version of the FMLA model forms and to include any appropriate modifications needed to afford themselves protection under GINA’s safe harbor provisions.