The U.S. Department of Labor (the “DOL”) recently issued new forms for use when an employee requests or has need for leave under the Family and Medical Leave Act (the “FMLA”). Employers can access the forms on the DOL website or at the links below.
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 Notice of Eligibility and Rights & Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency For Military Family Leave
- WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
The most significant change to the FMLA forms is the inclusion of safe-harbor language in the requests for medical information to ensure compliance with the restrictions under the Genetic Information Nondiscrimination Act of 2008. The new safe-harbor language is as follows, “[d]o 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 disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”
Employers are not required to use the DOL forms as long as they do not request more information than allowed under the FMLA regulations. However, many employers prefer the convenience of the DOL standard forms, and now those employers will not have the additional burden of adding GINA safe-harbor language to DOL forms and/or cover letters.