Public comments originally were due by April 16, 2012.  However, last week, the DOL announced that it is extending the due date for comments to April 30.  We strongly encourage you to make your voice heard about these proposed regulations.

This morning, these proposed regulatory changes were published in the Federal Register (pdf), which means that the public has 60 days, or until April 16, 2012, to comment on them.   

We strongly encourage you to make your voice heard about these proposed regulations.  On behalf of our law firm, Franczek Radelet, and our employer clients, I intend to submit comments to the DOL.  If you would like your thoughts, concerns and suggestions to be included in our comments, please let me know.  Please email your comments to me at jsn@franczek.com by April 1, 2012 to ensure that we can incorporate them into our submission.

The proposed regulations also comment on the DOL's model FMLA forms as well as an employer's obligations under the Genetic Information Non-Discrimination Act (GINA).  So, read on...

Military Family Leave

Caregiver Leave

Under the National Defense Authorization Act of 2010, eligible employees can take up to 26 weeks of FMLA leave ("caregiver leave") in a single 12-month period to care for a covered service member or veteran with a serious injury or illness.  Under the NDAA and the proposed regulations, caregiver leave now can be taken up to five years after the service member leaves the military and for an injury or illness that results from a condition that predates the individual's active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Interestingly, the DOL is proposing that caregiver medical certification also may be completed by health care providers who are not affiliated with the military or Veterans Administration.  The same would apply to second and third opinions, so long as the initial certification was conducted by a HCP not affiliated with the military or Vets Administrations.  Under the current regulations, second and third opinions are not allowed for caregiver leave.  The DOL has specifically sought feedback on this issue, suggesting that it is open to even further changes to the proposed rule.

Exigency Leave

The NDAA and the proposed regulations also 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.  Qualifying exigencies naturally encompass a wide range of activities associated with a service member's deployment, such as attending to legal, financial, family, child care, school and other matters. 

Prior to the NDAA's enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  The latter group specifically was excluded in the original statute.  At that time, the DOL rationalized that the lives of regular service members were not disrupted in the same manner as Reserve and National Guard members; hence, no exigency leave for "regular" freedom fighters.  However, the NDAA and proposed regulations reverse that position and now make clear: FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members.

Finally, the proposed regulations seek to expand from five to 15 days the amount of FMLA leave an employee can take to be reunited with a service member during "rest and recuperation" periods.

Airline Flight Crew Eligibility

The Airline Flight Crew Technical Corrections Act (AFCTCA) ensures that more employees are eligible for FMLA leave.  Enacted in 2009, AFCTCA closed a loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave.  Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek. 

AFCTCA applies the same concept to airline flight crews.  In short, the Act provides that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the proposed regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.  This calculation would not include personal commute time, or time spent on vacation, medical or sick leave.

The rules proposed by the DOL provide specific instruction on how to implement this technical correction and apply the standards for flight crew benefits.

Calculation of Increments of FMLA Leave

Smallest Increments of Leave

In an interesting add on, the DOL also proposes to change the manner in which employers calculate increments of leave.  Before the regulations were changed in January 2009, employers were required to track intermittent or reduced schedule FMLA leave in the smallest increments used by their payroll systems to account for such leave, so long as it was one hour or less.  Thus, if an employer tracked employee time worked in 6-minute increments, the FMLA regulations required employers to also track FMLA leave in the same manner. 

In a move that was heralded at the time by the employer community, the DOL amended the regulations in 2009 to allow employers to track FMLA leave time in the same manner they track other forms of leave.  For instance, if the employer required employees to exhaust sick or vacation leave in one-hour increments, they also could require employees to exhaust FMLA leave in one-hour increments so long as the employee wished to use paid leave for the absence.

In short, the DOL proposes that we revert back to the pre-2009 regulations, reasoning that "an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave."  Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time.

Physical Impossibility Provisions

Finally, the proposed regulations also seek to roll back a 2009 regulatory change that allowed employers to delay reinstatement where it is physically impossible for the employee to return to his or her job in the middle of their shift.  For example, if a flight attendant required two hours of intermittent leave because of a migraine headache, but also missed his scheduled flight as a result, the airline could delay returning him to work on that day because it was physically impossible for him to join his flight (since it already took off!).  As a result, the employer could designate a larger block of time as FMLA leave in that instance.

Not any more.  According to the DOL's FAQs on the proposed rules, the DOL “is concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift.”  Therefore, the proposed rule would apply the physical impossibility provision "only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave."

An Employer's GINA Obligations

The DOL also proposes adding a standard record keeping provision that would confirm employers' obligations to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).  The DOL reminds employers that, "to the extent that records and documents created for FMLA purposes contain 'family medical history' or 'genetic information' as defined in GINA, employers must maintain such records in accordance with [GINA's] confidentiality requirements." 

Oddly, the DOL does not propose an obligation on employers to include any language on GINA protections within the medical certification form.  For a quick review of best practices in doing so, see our post from earlier this month on the issue. 

The DOL's FMLA Forms are gone too? 

Sniff, sniff.  The DOL also intends to whack from the Appendices all of the required FMLA model forms and notices.  Why?  We haven't a clue, since we know the federal government's fondness for paper.  If the rule is approved, these forms and notices would only be available on the DOL's wage and hour website. 

Insights for Employers

1. First, take a deep breath and digest.  Nothing is final just yet!  We now have 60 days (from the time these proposed rules are published in the Federal Register, which is any moment now) to comment on the proposed regulations.  When the proposed rules are officially published, we will be able to submit comments here.  
2. In addition to the newly proposed regulations (see link above), take a minute to review the DOL's FAQs and Fact Sheet #1 and Fact Sheet #2 on the proposed regulations.
3. After a deep breath (see No. 1 above), bombard your employment attorney with all kinds  of exceedingly appropriate questions: Will we need to change our FMLA policy and forms? (Yes!)  Will we need to train our managers on these changes? (Yes!) Will the FMLA continue to be an administrative nightmare? (Yes!)  But will we still live to see tomorrow?  (An unreserved Yes!)

More Insights for Employers to follow soon...after a short nap.

According to the web reports, the new rules will allow leave for family members when a servicemember is called to duty on short notice and "will help military families who require time off to care for service members who are injured or called to active duty."

We will post updates as information becomes available.

In 2011, our most popular blog entries involved two general topics: 1) employers' best practices for FMLA administration; and 2) leave as a reasonable accommodation under the ADA when FMLA leave ends.  We share these posts again below, since we believe the guidance is valuable as we enter a new year. 

The Best of 2011

In 2011, two blog posts highlighted practical steps employers should take to maximize the efficiency of their FMLA leave administration.  Updating your FMLA policy and forms, using the medical certification process to your advantage, enforcing call-in policies...and much more below.

Policies, Practices and More: An FMLA "To Do" List for 2011

Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

In August and September 2011, about 900 attendees attended my webinar with the EEOC Regional Attorney John Hendrickson regarding "Leave" as a reasonable accommodation under the ADA.  My takeaways from that webinar proved to be popular as well, and employers kept the questions coming. 

What's in Store for FMLA in 2012?

The DOL has been relatively quiet on the FMLA front.  Some time ago, it intimated that it would conduct a survey in 2011 to "provide insight into how families use leave," but we heard nothing further.  Some (including me) wondered at the time whether this survey would signal even more regulatory change for the FMLA.  At this point, however, we are left guessing as to whether the DOL will even update its FMLA forms to include recommended changes such as the GINA disclaimer and the amended definition of "exigency leave" for military family leave.  Days ago, though, the DOL did publish this handy dandy guidance on FMLA retaliation, which told us what we should already know -- Don't retaliate against employees who take FMLA leave.

As we move into 2012, the EEOC (as opposed to DOL) seems to be grabbing the headlines on employee leave of absence issues, as it continues its war on automatic termination provisions and the use of leave as a reasonable accommodation under the ADA.  (See my post later this month on this topic.)  This year, we are likely to witness even more EEOC settlements in this area.  More importantly, the employer community eagerly awaits whether the EEOC will issue further guidance on "leave" as a reasonable accommodation, as it forecasted at its June 2011 hearing on this subject.  Will it give us the guidance we need to reduce liability and bring some predictability on this subject? 

In the meantime, we soldier on.  We update FMLA policies and forms.  We change our FMLA leave year so it is the most adventageous for our operations.  We update and communicate our call-in policies so all employees understand their responsibilities.  We clean up job descriptions so they are useful in the context of both the FMLA and ADA.  We create call-in questionnaires and effective medical certification procedures so we can better combat FMLA abuse.  (Click here for one of our more popular articles in 2011 on fighting FMLA abuse.)  We try to avoid an ever-growing list of FMLA class actions.  We train our supervisors and HR professionals so they are in the best position to administer the FMLA.

May your 2012 be an FMLA worry-free year.

Finally...a Thank You, Again!

As we start out 2012, we give thanks to you!  Because of our readers and your votes, we were voted the No. 3 Labor and Employment blog in 2011 by the ABA Journal and the No. 2 L&E blog of 2011 by LexisNexis.  We look forward to communicating with you about all things FMLA in the year ahead.  Keep the questions coming!

Why did the DOL's FMLA forms expire?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms to the Office of Management and Budget (OMB) for approval, so that OMB can ensure the information request and the time spent responding to the request is minimized.  [Insert your own sarcastic comment about the efficiency of the federal government here.]  OMB approved the DOL's FMLA forms in late 2008 around the time the new FMLA regulations took effect.  As a result, the forms were approved for three years, which is the maximum time period allowed.  Upon expiration of the forms (in this case, on December 31, 2011), the DOL may continue to use the forms while it seeks renewal of OMB's approval, which it has done in this instance. 

Even if employers can continue to use the DOL's FMLA forms, should they use them?

Ahem, this really is the more important question.  In a nutshell, we encourage employers to proceed with caution.  At a minimum, keep the following in mind and make appropriate changes in 2012 and beyond:

1. Add the GINA safe harbor provision to your FMLA notices and forms.  Under the Genetic Information Nondiscrimination Act (GINA), employers requesting medical certifcation or fitness for duty certification must instruct health care providers not to collect or provide any genetic information.  Therefore, employers should strongly consider adding language to their FMLA medical certification forms for an employee’s serious health condition and when an employee is seeking to care for a family member with a serious health condition.  And to avoid any further procrastination, I am even giving you the new language you should use.  Here it is:
   
   Employee's Serious Health Condition
   
   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.
   
   Family Member’s Serious Health Condition
   
   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 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. Please provide medical history information regarding your patient only to the extent necessary to fully respond to all relevant items below.
   
   Note:  This language should be added to the FMLA medical certification form or other written documentation that accompanies the form, and should be used when a fitness for duty certification is requested.  I also recommend that employers also use the above language in any correspondence to a health care provider where the employer is requesting medical information (e.g., to support a request for an ADA accommodation).
   
   
2. Consider adapting the DOL's "model" FMLA forms to suit your needs.  As my colleague Bill Pokorny shared in a prior post, the DOL's "model" FMLA forms fall short in several respects.  To name a few: 1) the medical certification forms do not request all of the information that employers may require, such as information regarding an employee's work restrictions; 2) the model designation notice does not include language addressing the rules for fitness-for-duty certifications for intermittent or reduced work schedule leave, which will be crucial to combat FMLA misuse and abuse; and 3) because the DOL's forms are designed as a "one-size-fits-all" solution, they include extraneous information that will not apply to all or even most employers, and do not reflect individual employers' policies and procedures.  Additionally, the forms do not account for the changes to exigency leave, which now is possible as a result of a family member's call to duty in a foreign country (as opposed to the confusing "contingency operation" language originally used). 
   
   However, changing the language of the DOL's model FMLA forms should be done carefully.  At a minimum, we encourage you to update your notices and forms regarding the change to exigency leave above.  Either way, we strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their rights under the FMLA regulations while also fully complying with the rules.

You now can access the archived version of the Webinar and the presentation materials here.  The Webinar provides an overview of the changes to the ADAAA and its regulations and offers strategies for avoiding and defending against potential disability discrimination claims. 

Effect on the FMLA: The ADAAA significantly expands the number of employees who are considered "disabled."  Consequently, employees who suffer from serious health conditions covered by the Family and Medical Leave Act now also may be covered by the ADAAA.  While covering several common workplace issues, our Webinar specifically addresses how to handle an employee who has exhausted FMLA leave but needs additional leave before returning to work. 

For additional information about the ADAAA and how it will impact your workplace, you also can access our comprehensive summary of the ADAAA final regulations here (pdf).

Based on our initial reading, the final regulations largely track the statutory changes made by Congress in 2008 and much of what the EEOC initially proposed for comment in September 2009. Notably, the final regulations:

• Emphasize that the definition of "disability" should be interpreted broadly; 
• Caution that the question of whether an individual is "substantially limited" in a major life activity "should not demand extensive analysis" in order to meet the standard necessary to establish a disability; 
• Expand the definition of "major life activities" through two non-exhaustive lists:

- the first focuses on activities, some of which the EEOC already has recognized (e.g., walking) and some of which are new to these regulations (e.g., sleeping, concentrating, thinking, reading); and

- the other focuses on major bodily functions (e.g., the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions); 

• Require that impairments be evaluated in their "unmitigated" state to determine whether the individual is disabled (the exceptions being contact lenses and ordinary eyeglasses); 
• Clarify that an impairment that is episodic or in remission is considered a disability if the impairment would substantially limit a major life activity when active; and 
• Make it easier for individuals to establish coverage under the "regarded as" prong of the definition of "disability."

Clearly, one of the aims of the new regulations is to take the focus off determining whether an individual is disabled and place it on necessary accommodations for a disabled individual.  Indeed, the regulations now state that the question of whether an individual is substantially limited in a major life activity "should not demand extensive analysis."

Perhaps the two most significant changes in the final regulations are the EEOC’s decision to specifically list medical conditions that will "virtually always" constitute impairments covered by the ADA, and its rejection of any minimum duration of time before an individual is considered disabled. 

Per Se Disability?

Acknowledging that the determination of disability requires an "individualized assessment," the EEOC lists conditions that will "virtually always" meet the definition of disability.  These include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, and a variety of serious mental disorders.  Given their inherent nature, states the EEOC, these impairments will: 1) virtually always impose a substantial limitation on a major life activity; and 2) require an individualized assessment that is "particularly simple and straightforward."  The EEOC declined to provide a list of per se disabilities, but as evidenced by the list above, it came close.

Short-term Impairments Could Constitute a Disability?

Although the proposed regulations included a provision stating that short-term impairments, such as a broken bone that is expected to heal fully, do not constitute disabilities, that language was removed from the final rules. Instead, the regulations specifically reject any minimum duration, and the EEOC points out that the duration of an impairment "is only one factor in determining whether the impairment substantially limits a major life activity, and impairments that last only a short period of time may be covered if sufficiently severe."  In other words, any impairment—no matter how long the duration—could be considered a disability.  Clearly, this issue will be one left for the courts to decide, particularly where the impairment lasts but a few months.

More to Come

Our Franczek Radelet ADA team is reviewing the final regulations, and we will follow up with a more detailed analysis in the days ahead. Before the regulations’ effective date, we also will host a webinar to provide employers further guidance on the regulations and the effect they will have on the workplace.  In the mean time, if you have any questions regarding the new regulations, please do not hesitate to contact us.

Under the FMLA, where both husband and wife work for the same employer, they are entitled to a combined 12 weeks of bonding leave per FMLA year.  (See 29 CFR 825.120(a)(3))  So, what if mom and dad both work for the same employer but are not married?  In what can only be described as a loophole in the FMLA, the unmarried parents do not have to split the 12 weeks -- each may take up to 12 weeks of bonding leave. 

As the California L&E blog points out, this contrasts with state FMLA laws (like the California Family Rights Act) where bonding leave is limited to a combined 12 weeks for the parents, regardless of whether they are married or not.  Perhaps an intended result, but one employers must be mindful of when administering FMLA leave.

To recap, GINA prohibits employers from acquiring genetic information about employees. There are certain limited exceptions to this prohibition, one of which is for inadvertent acquisition of genetic information. Where an employer receives genetic information in response to a lawful request for medical information to an employee, the rules say that the request WILL NOT be considered "inadvertent" "unless the covered entity [i.e., the employer] directs the individual and/or health care provider from whom it requested medical information ... not to provide genetic information." The rules include some optional "safe harbor" language that an employer can use to provide the required notice. 

However, if a request for medical information is narrowly tailored so that it is "likely to result in a covered entity obtaining genetic information," the regulations say that the failure to use the "safe harbor" language or a similar notice will not prevent it from establishing that its receipt of genetic information was inadvertent. 29 C.F.R. § 1635.8(b)(1)(i)(C).

After further conversation with an attorney at the EEOC, it seems that the EEOC may take the position that the DOL's model medical certification form is sufficiently narrowly tailored so that it is not likely to result in the employer obtaining genetic information. If that is the case, then it would not be necessary for an employer to provide the GINA safe harbor notice when requesting certification using the DOL model forms. 

Unfortunately, the regulations are not entirely clear as to when the safe harbor language is required, and the EEOC has not issued any official guidance confirming that the DOL model form is sufficiently narrow to fall within the "inadvertent acquisition" exception under GINA. That being the case, our recommendations for the time being remain the same: 

• As soon as possible, and no later than the effective date, employers should update their FMLA medical certification forms to include the "safe harbor" language above.
• Employers who use the DOL model forms should consider including the safe harbor language as an additional attachment or addendum to the forms. As noted above, the EEOC may take the position that this is not required - but there is no guarantee of this, so better safe than sorry.
• The disclosure language should also be included on other requests for medical information, such as requests for documentation of an employee's need for an accommodation and fitness for duty certifications.
• Employers who have not already done so should educate HR personnel, managers and supervisors about GINA, and ensure that their internal policies and procedures comply with the new regulations.

In the mean time, here is the language from the rules - we still think it means that the safe harbor language should be included in your FMLA certification forms, but you can decide for yourself:

29 C.F.R. 1635.8 - Acquisition of Genetic Information.

(b) Exceptions. The general prohibition against requesting, requiring, or purchasing genetic information does not apply:

(1) Where a covered entity inadvertently requests or requires genetic information of the individual or family member of the individual.

(i) Requests for Medical Information:

(A) If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.

 (B) If a covered entity uses language such as the following, any receipt of genetic information in response to the request for medical information will be deemed inadvertent: ‘‘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.’’

...

(D) Situations to which the requirements of subsection (b)(1)(i) apply include, but are not limited to the following:

...

(2) Where an employer requests medical information from an individual as required, authorized, or permitted by Federal, State, or local law, such as where an employee requests leave under the Family and Medical Leave Act (FMLA) to attend to the employee’s own serious health condition or where an employee complies with the FMLA’s employee return to work certification requirements; or

(3) Where the covered entity requests family medical history to comply with the certification provisions of the Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.) or State or local family and medical leave laws ....

Here is the EEOC's commentary on the issue:

The Commission further recognizes that other federal, state, or local laws may allow covered entities to obtain medical information about employees. A covered entity that inadvertently receives genetic information in response to a lawful request for medical information under such a law would not violate GINA. For example, a covered entity might receive genetic information in connection with an employee’s request for FMLA leave to attend to the employee’s own serious health condition or in connection with the FMLA’s employee return to work certification requirements, even though an employee is not required to provide genetic information in either of these situations.10 Acquisition of genetic information in these circumstances will be considered inadvertent if the covered entity affirmatively warns individuals and health care providers from whom they are seeking medical documentation not to provide genetic information, or, in the absence of such a warning, where the request for medical information was not likely to result in the acquisition of genetic information.11 In response to two comments concerning the need for additional clarity with regard to how the exceptions to the prohibition against acquiring genetic information apply to information received pursuant to the FMLA, we have added the above examples to 1635.8(b)(1)(ii)(D)(2)(which was 1635.8(b)(1)(iv) in the proposed rule), as well as additional detail to the preamble’s discussion of the FMLA exception (1635.8(b)(3)), discussed below. See Comments of APA and Anil Chaudhry.

10 There is a separate exception for the acquisition of family medical history received from individuals requesting leave under the FMLA or similar state or local laws to care for a family member. This exception is discussed in detail below.

11 One commenter expressed concern that adding any language to the FMLA certification form would result in a statutory violation of the FMLA. See Comment of Illinois Credit Union League. The EEOC does not enforce the Family and Medical Leave Act and therefore has no authority to interpret it. We know of no reason, however, that informing a health care provider that genetic information should not be provided when certifying an employee’s own serious health condition would lead to a violation of the FMLA. Moreover, the notice informing applicants/employees and health care providers that they must not provide genetic information, including family medical history, to covered entities need not be made on the FMLA certification form itself, as long as it is provided in writing along with the form.

Employers covered by the FMLA should take note of new final regulations under the Genetic Information Nondicrimination Act (GINA) published this week by the U.S. Equal Employment Opportunity Commission (EEOC). Although the FMLA is enforced by the U.S. Department of Labor, not the EEOC, the new GINA regulations require employers who seek medical certifications in support of leave or accommodation requests - including FMLA leave - to provide new disclosures or risk violating GINA. 

What is GINA?

GINA was signed into law by President Bush in May 2008 and took effect on November 21, 2009. Title II of the Act is purportedly designed to prevent the misuse of certain genetic information for employment purposes. Title II prohibits discrimination and harassment based upon genetic information, bars employers from acquiring genetic information except in certain narrow circumstances, and requires employers to keep any genetic information they may have confidential. 

Under GINA, "genetic information" includes:

• Information about an individual’s genetic tests;
• Information about genetic tests of an individual’s family members;
• Information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history);
• An individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; and
• Genetic information of a fetus carried by and individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive techcnology.

New Rules For Requesting Medical Information

GINA's prohibition on acquiring genetic information does not apply to "inadvertent" acquisition of such information, or to an employer's request for family medical history in a lawful request for certification under the FMLA. The exception for inadvertent disclosure seemed to provide some assurance to employers that lawfully requesting medical information as permitted by the FMLA, ADA and other state and federal laws would not result in a violation of GINA, even if the request happened to result in the disclosure of genetic information. However, under the new final rules, employers can rely upon this "safe harbor" only if they affirmatively notify employees of GINA's limitations on requests for genetic information.

If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information. 

The rules go on to state that employers can satisfy this notice requirement by using the following language in a request for medical information, such as an FMLA certification form:

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. 

Unfortunately, when it comes to FMLA leave for a family member, simply inserting the above language into a certification form may be misleading. As noted above, GINA includes an additional exception that allows employers to ask for "family medical history" to comply with the FMLA. Consequently, when seeking leave for a family member's serious health condition, it may be necessary to modify the language above to make it clear that "family medical history" IS required, at least to the extent necessary to make the medical certification complete and sufficient under the FMLA. 

Insights for Employers

• The new final GINA regulations take effect January 10, 2011. 
• As soon as possible, and no later than the effective date, employers should update their FMLA medical certification forms to include the "safe harbor" language above. 
• Employers who use the DOL model forms should consider including the safe harbor language as an additional attachment or addendum to the forms. 
• The disclosure language should also be included on other requests for medical information, such as requests for documentation of an employee's need for an accommodation and fitness for duty certifications. 
• Employers who have not already done so should educate HR personnel, managers and supervisors about GINA, and ensure that their internal policies and procedures comply with the new regulations. 

Yesterday, the Administration signaled that its commitment to work-family balance is back on track. 

Per the Task Force's recommendations as to family and medical leave, the Department of Labor will conduct a Family and Medical Leave Act survey in 2011 to "provide insight into how families use leave."  In addition to collecting data on current family workplace policies and practices, the DOL hopes to gather "more information on parental leave, child care responsibilities, family leave insurance program usage, and other issues related to the intersection of work and family responsibilities."  The DOL also intends to host a series of "National Dialogue on Workplace Flexibility" forums across the country.  Over the past year, the DOL has sent mixed signals as to whether there will be major FMLA regulatory change later this year.  However, a 2011 FMLA survey may very well forecast substantial regulatory changes next year.

Also announced in yesterday's Task Force event, the Administration indicated that the EEOC and DOL would coordinate enforcement and data collection activities to better crack down on wage violations and systemic pay discrimination practices.  This is a notable development, since it has been apparent that EEOC or DOL very rarely shares data with the other or coordinates strategy on enforcement priorities.

Well, the Administration took a major step in recognizing the need for such flexibility on Tuesday when the U.S. Department of Labor issued Administrator's Interpretation No. 1010-3, which clarifies the definition of "son and daughter" under the FMLA. In doing, so we have expanded FMLA protections to cover loving caregivers that have traditionally been left out.

It's called in loco parentis, a Latin phrase and legal doctrine that may require interpretation for those of us who are not lawyers: It means "in the place of a parent." And when applied to the new realities of work and family, it means all employees who have assumed the responsibility for parenting a child, whether they have a biological or legal relationship with the child or not, may be entitled to FMLA leave.

Lawyers will no doubt debate whether Secretary Solis is right that the interpretation expanded existing law - and if so, whether it is enforceable in court. However, what is clear from this statement is that the Department of Labor intends to use its new Administrator Interpretations not just to provide guidance on the law, but to affirmatively shape it - and likely in ways that will expand employees' rights. 

To keep up to date on what Secretary Solis has to say, you can follow her on Twitter at www.twitter.com/@HildaSolisDOL. 

Who is Entitled to FMLA Leave under the DOL’s interpretation?

In its June 22 interpretation, the DOL states that an otherwise eligible employee is entitled to FMLA leave under the same circumstances as a biological or legal parent if that individual has assumed parental responsibilities for a child.  The DOL’s interpretation provides specific examples where it would find a parental relationship sufficient to confer FMLA leave rights, despite the absence of a biological or legal relationship between the parent and child:

• where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child
• where an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth
• where an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

The DOL’s interpretation is not limited to same-sex couples.  As the interpretation makes clear, a grandmother who assumes ongoing responsibility for her grandchild because the parents are incapable of providing care will be able to seek family and medical leave from her employer.  Similarly, an aunt or uncle who cares for an adolescent niece when her single parent has been called to military duty also would be entitled to FMLA leave.  The interpretation, however, does not open the door completely to FMLA rights for same-sex couples, as the expanded interpretation still does not allow a same-sex partner to obtain FMLA leave to care for his or her partner with a serious health condition.

How does the DOL Interpretation Affect Employers?

The impact on employers is immediate – if an employee makes a request for FMLA leave to care for the child of their same sex partner or, for that matter, any child that he or she is going to care for “in loco parentis,” employers will likely have to grant the request, subject to the receipt of appropriate medical certification or documentation establishing a parental relationship.

According to the DOL interpretation, where an employer questions whether the employee’s relationship to the child is covered under the FMLA, the employer may require the employee to provide “reasonable documentation or a statement of the family relationship.”  However, the DOL emphasizes that this documentation need not consist of anything more than a “simple statement” from the employee asserting that a family relationship exists.  See 29 C.F.R.§ 825.122(j).

As a result of the DOL’s interpretation, employers should promptly review their FMLA policies and practices to ensure that employees who may be acting in loco parentis in the absence of a biological or legal relationship nevertheless receive appropriate FMLA leave.

Our June FMLA Insights Podcast, which will be posted here later this week, will address the above DOL interpretation to provide guidance to employers as they administer FMLA leave in an in loco parentis situation.

We will of course provide details of the new ruling once it becomes available. 

1. The qualifying exigency and military caregiver leave amendments; and
2. The new airline flight crew rules. 

These comments appear to reign in earlier statements made in DOL's semiannual regulatory agenda (pdf), at which time the DOL indicated an interest in reviewing all of the new FMLA regulations, which took effect in January 2009.  These comments left employers wondering whether the DOL would roll back some or all of the perceived "employer-friendly" regulations.

What will the DOL's FMLA Regulatory update likely cover?

According to the DOL, the regulatory update apparently will be limited to regulations that interpret:

1. The 2010 Defense Authorization Bill, which expanded the manner in which employees can take leave due to “qualifying exigencies” arising from family members’ military service, and to care for family members injured in the course of military service; and
2. The Airline Flight Crew Technical Corrections Act, which makes it easier for flight crews to qualify for FMLA leave by changing the manner in which hours of service requirements are met to account for the airline industry's unique timekeeping methods.

However, the DOL's position on the FMLA regulatory agenda could change on a moment's notice, and it does not take into account the number of bills pending in Congress that would considerably expand the reach of the FMLA.  See our earlier post for an update on FMLA-related bills currently pending in Congress and their status.