When requesting medical certification of the need for FMLA leave, most employers rely on the U.S. Department of Labor’s certification forms. DOL publishes four medical certification forms, based on the specific kind of FMLA leave requested. Employers rely on these forms because they are considered a “safe harbor.” Employers believe that they cannot be accused of engaging in improper medical inquiries if they limit their requests to information sanctioned by DOL.
Employers became highly irritated when the Equal Employment Opportunity Commission commented that the DOL FMLA forms might not create as safe a moorage as they assumed. In 2013, the EEOC noted that nothing in the DOL medical certification forms addressed disclosure of genetic information or family medical histories prohibited under the Genetic Information Non-Disclosure Act (GINA). In other words, an employer could violate GINA by asking the employee to have his or her doctor fill out the DOL FMLA form if the resulting information contained family medical histories.
Fortunately, DOL responded to this interagency conflict in May by amending its medical certification forms. All four forms now include language instructing the medical provider: “Do 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).” The revised forms can be found here
Employers not already using the revised medical certification forms should immediately replace the outdated ones. DOL is updating all of its FMLA forms on a more frequent basis, and employers should periodically check the DOL website to make certain they are relying on the current versions. Safe harbors can be a wonderful protection for employers, but only if they have the most up-to-date ship.