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By: David Cole
The U.S. Department of Labor recently issued updated health care provider certification forms for employers to provide employees who request leave pursuant to the Family and Medical Leave Act. The new forms include the following:
The most notable update to the forms are references to the Genetic Information Nondiscrimination Act of 2008 (“GINA”), a federal law that prohibits employers from discriminating against an applicant or employee because of his genetic information. This reference, found in the form’s opening instructions, warns health care providers not to 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).” Essentially acting as a safe harbor, this instruction protects employers from a GINA violation if they inadvertently receive genetic information from a health care provider in response to a lawful request for information under the FMLA. The DOL also revised the certification forms to instruct employers that “genetic information” received in response to the certification must be kept confidential, in accordance with GINA’s requirements.
Employers should begin using these forms immediately. They are valid through May 2018, and can be downloaded here from the DOL’s webpage.