The Department of Labor’s model Family Medical Leave Act forms have expired. What are you supposed to do before new ones are issued?
The feds have said employers can continue to use the expired forms until new one are issued.
In total, six forms have expired on the DOL’s FMLA website (all are PDFs):
- Certification of Health Care Provider for Employee’s Serious Health Condition
- Certification of Health Care Provider for Family Member’s Serious Health Condition
- Notice of Eligibility and Rights & Responsibilities
- Designation Notice
- Certification of Qualifying Exigency For Military Family Leave
- Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave
Employers are allowed to use these forms or develop their own using these as models.
By law, the DOL’s FMLA forms must be submitted to the Office of Management and Budget (OMB) for approval. The OMB approved these forms in 2008 for a three-year period, the maximum amount of time allowed. They expired on Dec. 31, 2011. But until new forms are approved, employers are allowed to continue using them.
You may notice new expiration dates have been placed on these forms, but that’s inconsequential. They may be used until the new forms have been approved and released.
New forms have been submitted to the OMB. They are currently awaiting approval.
Add GINA provision
One word of warning if you’re still using these forms: They do not contain the GINA safe harbor language, which came along after the forms were approved in 2008.
Employers would be wise to add the language whenever they request medical certification of the need for leave. It tells employees and their medical providers they should not provide “genetic information” (a.k.a. family medical history) when responding to a request for FMLA certification.
The Equal Employment Opportunity Commission (EEOC) has suggested employers add the following language in forms when requesting health-related information from an employee:
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.
