As most employers know, the Department of Labor Family Medical Leave Act (FMLA) forms which were initially issued in the early 1990s expired as of December 31, 2011. The Department of Labor (DOL) has been working with the Office of Management and Budget to extend the life of these forms and received approval that their model forms will be extended through February 28, 2015. Unfortunately, the DOL has made very few changes to those forms to incorporate any required modifications with regard to the expansion of Military Family Leave and the provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA).

It should be noted that as of 2010, many amendments were passed with regard to Military Family Leave and related exigency leave. The proposed regulations allow employees to take up to 12 weeks of FMLA leave for a “qualifying exigency” due to a family member’s call to active duty in a foreign country. The qualifying ranges of the exigency leave normally encompass a wide range of activities dealing with that service member’s deployment such as attending to legal, financial, family, child care, school, and other related matters. The FMLA has also been revised to allow employees up to 26 weeks of job protected leave in a single “12 month period” to care for a service member with a “serious injury or illness related to his/her military service.” Note that prior to the National Defense Authorization Act of 2010, exigency leave was only available to family members of Reserve and National Guard units and not regular service members. However, with the passage of the National Defense Authorization Act of 2010 and the proposed regulations, FMLA leave is now available to family members of regular service members, as well as Reserve and Guard units. Efforts should be made to modify all FMLA leave documentation to reflect these changes. Further information regarding these issues can be obtained from the Department of Labor website, Fact Sheet 28 and 28A.

As well, the Genetic Information Non-Discrimination Act of 2008 (GINA), prohibits discrimination and harassment based on genetic information and prohibits employers from acquiring genetic information except in very narrow circumstances. Genetic information includes:

• Information about an individual’s genetic tests.
• Information about genetic tests of an individual’s family.
• Information about the manifestation of a disease or disorder in an individual’s family.
• Genetic information dealing with a fetus carried by an individual or by some pregnant woman who is a family member of the individual.

It is strongly suggested that for both FMLA leave documentation dealing with an individual and an individual’s family, the following be added to all required FMLA forms:

The Genetic Information Non-Discrimination Act of 2008 prohibits employers and other entities covered by Title 2 of the Act from requesting or requiring genetic information of an individual or family member of that individual except as specifically allowed by the Genetic Information Non-Discrimination Act. To comply with this law, we request that you not provide any genetic information when responding to this request for medical information. Genetic information, as defined by the Genetic Information Non-Discrimination Act of 2008, includes an individual’s family medical history; the result of an individual’s or family member’s genetic testing; the fact that an individual or an individual’s family member sought or received genetic services; any genetic information regarding a fetus carried by that individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving reproductive services.

The use of the suggested Department of Labor Forms was based on alleviating any possible “technical violations” that might have occurred through the use of employer-created forms. The author suggests that the genetic information referred above be merely added to the Department of Labor Forms dealing with the Certification of Health Care Provider by attaching as an amendment.

Questions? Contact Walter J. Liszka in the Chicago office at waliszka@wesselssherman.com or by phone at (312) 629-9300.