HIGHLIGHTS:

• The U.S. Department of Labor (DOL) recently published updated health care provider certification forms for employers to provide employees who request leave under the FMLA.
• The updated forms now contain a reference to the Genetic Information Nondiscrimination Act of 2008 (GINA).
• While employers may not request genetic information from an applicant or employee, there is no GINA violation if the employer receives genetic information from a health care provider who is responding to the employer’s lawful request for information under the FMLA if an acceptable GINA notice is included in the request.

The U.S. Department of Labor (DOL) recently published updated health care provider certification forms for employers to provide employees who request leave under the Family and Medical Leave Act (FMLA) due to any one of the following:

• their own serious health condition (WH-380-E)
• a family member’s serious health condition (WH-380-F)
• to care for a covered service member or veteran with a serious injury or illness (WH-385 and WH-385-V)

Employers should begin using these forms immediately. Copies of the updated forms are available on the DOL’s website.

GINA Act Information

The updated FMLA health care provider certification forms now contain a reference to the Genetic Information Nondiscrimination Act of 2008 (GINA), which states in the section containing instructions to the health care provider who is completing the certification form:

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).

GINA is a federal law that prohibits employers with 15 or more employees from discriminating against employees or applicants because of their genetic information. While employers may not request genetic information from an applicant or employee, there is no GINA violation if the employer receives genetic information from a health care provider who is responding to the employer’s lawful request for information under the FMLA. But this exception is effective only to the extent the employer instructed the health care provider not to include genetic information in completing the health care provider certification form. The inclusion of the genetic information notice in the updated DOL forms presumably was intended to satisfy this requirement.

EEOC Model Genetic Information Notice

Notably, the Equal Employment Opportunity Commission (EEOC) – not the DOL – enforces GINA. The genetic information disclaimer language contained in the DOL’s health care provider certification forms is not the same as the disclaimer the EEOC has sanctioned in its regulations. The EEOC’s model genetic information notice is 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.

29 C.F.R. §1635.8

Employer Acquisition of Genetic Information

The EEOC’s model notice may be used in any situation where medical information about the employee is being requested (e.g., assessing an employee’s request for a disability accommodation). It is not known whether the EEOC views the DOL’s genetic information notice language as sufficient. Thus, inclusion of the DOL’s version of the genetic information notice may not satisfy the EEOC. Employers who wish to be cautious should include the EEOC’s model notice language when providing the employee with the health care provider certification form.