FMLA Insights - Guidance & Solutions for Employers

Over the past month, as we recognized the 20th Anniversary of the Family and Medical Leave Act, advocates for employees and employers have been clamoring for changes to the Act.  

On one hand, employee advocates are calling for a broad expansion of the FMLA that would allow for paid leave or broader coverage (e.g., lowering the threshhold so more employers are required to provide FMLA leave and extending the Act to part-time employees).

On the other hand, the employer community has called upon Congress and the Department of Labor to fix the ills of the FMLA.  Count me among them. In a column I wrote for the Chicago Tribune this past weekend, I encouraged federal lawmakers to repair a broken FMLA before they tackle the issue of mandated paid leave. 

My Tribune column naturally was limited because of space.  If I had more room, as I do here, I'd share with lawmakers and the Department of Labor changes I believe are necessary to improve the FMLA so that it works for employees and employers for the next 20 years.

From my experience assisting employers administer the FMLA, I find that the FMLA and its regulations are (most) flawed in three fundamental areas: the definition of a serious health condition, the use of intermittent leave and the medical certification process.  Here's what I'd encourage Congress and the DOL to change:

Clearly Define Serious Health Condition

During its deliberations before passing the FMLA, Congress made clear that the term "serious health condition" was not intended to cover "short-term conditions for which treatment and recovery are very brief,” “minor illnesses which last only a few days,” or “surgical procedures which typically do not involve hospitalization and require only a brief recovery period.”  Rightfully so, these medical conditions should be covered by typical sick leave or PTO policies.  

So, why has "serious health condition" become so watered down?  Let's use a good example.  In a 1995 opinion letter, the DOL found that a common cold or flu, absent complications, would not satisfy the definition of a serious health condition.  WH Opinion Letter FMLA-S7 (Apr. 7, 1995). However, just a year later, DOL pulled back on this interpretation, stating that the 1995 opinion “expresses an incorrect view, being inconsistent with the Department’s established interpretation of qualifying serious health conditions under the FMLA regulations.”  WH Opinion Letter FMLA-86 (Dec. 12, 1996).   In its opinion letter, the DOL stated that minor illnesses would be considered serious health conditions if they otherwise meet the incapacity and continuing treatment prongs of the FMLA.  In doing so, the DOL arguably rendered meaningless the regulation relating to the common cold and flu.  Put another way, minor illnesses that should have never been covered by FMLA are now covered by the Act.  That has to change.

To ensure that employees are provided FMLA leave consistent with what Congress intended, the following changes should be considered:

• Give meaning to the FMLA regulation regarding common colds and the flu, recognizing a strong presumption that these kinds of conditions are not covered by the Act.  The DOL should take a hard look at what's "minor" and make sure those conditions stay in that category.  This is what ordinary sick leave or PTO policies are good for.
• Continuing treatment should be defined as two visits to a health care provider within 30 days of the onset of incapacity.  As it stands now, an employee can go to the doctor once, get an antibiotic, and qualify for FMLA.  Remove the mumbo jumbo in the rules and make it clear -- if the medical condition is serious enough to qualify for FMLA, the employee should have two visits to the doctor.  We require two visits in one year for a chronic condition, so why not two visits in 30 days for a condition that renders the employee incapacitated for several days.  This change would alleviate the need to determine whether the employee is under a "regimen of continuing treatment," which is entirely (and rightfully) confusing to HR professionals.
• Increase the number of days of incapacity.  Common colds and flu can last several days, thereby potentially triggering the FMLA.  The period of incapacity should be a full calendar week.

Use of Intermittent Leave

Ask HR professionals or in-house attorneys to put together a Top Three pet peeve list, and they will tell you the bane of their existence is administering FMLA leave, particularly where intermittent leave is involved.  Why?  Because intermittent leave comes in dribs and drabs, all of which naturally lend themselves to a whole lot of abuse.  In a 2007 survey, "FMLA and its Impact on Organizations," SHRM found that 66% of HR folks reported challenges with intermittent leave abuse and over 40% felt they had to approve a request they believe was not legitimate.  

How do we clean up intermittent leave?  I know all of you have plenty of suggestions (and I welcome them), but here are a few of mine:

• Allow more flexibility in seeking recertification.  Too many certifications supporting intermittent leave list the duration of the condition as "indefinite" or "lifetime."  In these situations, an employer can recertify only every six months.  Unless the employer receives reliable infor­mation that the circumstances have changed significantly, the employee can go quite a bit of time without recertification. Medical certification in these instances should be valid for a much shorter period to time -- perhaps 60 or 90 days.
• Require the use of FMLA leave in half-day or full-day increments.  In its latest regulatory changes, the DOL confirmed that unforeseeable FMLA leave can be taken in teeeeeeny-tiiiiiiiny increments.  What does this mean for employers?  That we will continue to be nickeled and dimed to death.  I am shocked at the amount of time my clients spend logging small increments of FMLA time and following up on these leave requests. Requiring longer increments will greatly help employers track and manage leave, and I think it will cause employees to be more judicious about their use of FMLA.  
• Endorse policies that require submission of doctors' notes for absences.  Under the FMLA, employers arguably cannot require an employee to submit a doctor's note for an absence already covered by valid medical certification.  In fact, employers have been dinged for engaging in such a practice (listen to our podcast on this topic here).  But why?  If the employer has reason to doubt an absence, or simply wants confirmation that the employee was incapable of working, the DOL should support an employer's right to seek confirmation from the employee's doctor.  Simple as that!
• Employers need a better solution for employees who are on indefinite, unpredictable absences from work.  An employee who has rhinitis ten times per month for one-half day each?  One who has a chronic bad back fifteen times per month for 1-2 days per flare up?  Another who has IBS and his schedule is entirely unpredictable?  These present a most difficult conundrum, as the need for leave may or may not be legitimate.  Where do we draw the line?  We may never be able to arrive at a solution that makes everyone happy, but at a minimum, employers must be given the option to deal with these situations to better accommodate their operations, such as temporarily reassigning the employee or placing them on a block leave of absence. 

Medical Certification

This list could just as easily be a continuation of the intermittent leave section above, but here are a few more suggestions where medical certification is concerned:

• Require more specific information in the "medical facts" section of the certification form, including the requirement that the health care provider report a diagnosis.
• Allow employers to obtain more information supporting the notion that a medical condition actually incapacitated an employee from working on a particular occasion. Again, employers often are stuck with whatever the certification on file indicates, yet they have no confidence that, for example, a migraine headache on a particular day renders the employee unable to perform the job.  
• Similarly, employers are skeptical when there appears to be no objective clinical basis for deter­mining that the employee has a serious health conditions that incapacitates them from working.  Instead, the doctor relies on an employee's subjective complaints.  The DOL should insist that medical certification provide evidence of objective clinical evidence of a serious health condition.
• When the employee fails to submit certification or fails to cure a poorly composed certification, there should be a stronger presumption that the employer can deny leave. Too many employers are gun shy about denying leave in these instances.  They also are confused as to the latitude they must give employees to cure an insufficient certification. The DOL should provide stronger language supporting employers' rights in this area.
• The second and third opinion process should carry more weight, and employers should be able to rely on them for absences in the past and the future.  The DOL covers this process in a paragraph or two in the regulations.  However, as employers increasingly use this costly second and third opinion process, these processes should be given greater weight as to absences that occur in the future.  As it stands now, it's entirely unclear whether these opinions apply in the future.  A handful of court cases say that employers should be able to rely on them.  DOL should endorse the same approach.

Dang, I'm pooped.  Chew on these for awhile, then tell me what you would change about the FMLA and its regulations so that it would work better for both employees and employers.  I'll post all feedback below in the comment section.

This week, the Department of Labor released its final rule implementing the Family and Medical Leave Act amendments under the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).  The final regulation also revises a handful of existing regulatory provisions, and removes the model FMLA forms from the appendices of the regulations.  I reported on these proposed changes in greater detail in a previous blog post last year.  The final rule takes effect March 8, 2013.

Military Family Leave

The new rules regarding military family leave are not controversial and effectively carry out the amendments made by the NDAA. 

Caregiver Leave

As for caregiver leave, it now can be taken up to five years afterthe 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.

Qualifying Exigency

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.  However, the NDAA and proposed regulations reverse that position.  FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members, so long as they are being deployed to a foreign country.  The final regulation also added and tweaked current qualifying exigencies:

• Expands from five to 15 days the amount of “Rest and Recuperation” FMLA leave an eligible employee can take to spend with a covered family member; and
• Creates a new category for parental care (caring for the servicemember's parent when the parent is incapable of self-care)

Airline Flight Crew FMLA Leave

Enacted in 2009, AFCTCA closed an apparent 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, providing 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 FMLA 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 does not include personal commute time, or time spent on vacation, medical or sick leave.  The changes will result in more employees who are eligible for FMLA leave. 

The final rule also includes:

• Listing of all special requirements applicable only to airline flight crew employees and their employers (subpart H);
• Adoption of a uniform entitlement for airline flight crew employees of 72 days of leave per applicable leave year for one or more FMLA-qualifying reason and 156 days of military caregiver leave; and
• Imposition of special recordkeeping requirements on employers of airline flight crew employees.

Other Notable Changes (or Non-Changes!)

Physical Impossibility

Although the DOL appeared poised to make changes to the "physical impossibility rule," it simply reminded employers that this rule is to be applied in only the most limited circumstances, and that the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.  Notably, the DOL shared the following in its Fact Sheet 28I on the issue:

In a situation where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, the entire period the employee must be absent is designated as FMLA-protected leave and counts against the employee’s FMLA entitlement. The period of the physical impossibility is limited to the period when the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position after a period of FMLA leave due to the physical impossibility. This rule applies only to situations where it is truly physically impossible to return the employee to work after an FMLA-qualifying absence, for example, a railroad conductor whose FMLA leave prevents him from boarding the train before it leaves for its scheduled trip.

Increments of Leave

The DOL maintained a provision that allows employers to use varying increments of leave at different times of the work day or shift.  It reaffirmed the current rule that employers "must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour."

DOL's Model FMLA Forms

Notably, the WHD removed its model FMLA forms from the regulations’ appendices.  Employers may now locate the optional-use forms on the DOL website.  This change was made so that DOL has the flexibility to change (and hopefully, improve) the forms as needed without getting bogged down in the regulatory approval process.  DOL remarked that any future substantive changes to the forms will remain subject to normal notice and comment.

Resources

More information regarding the rule, including a side-by-side comparison of the new rule with the prior version, frequently asked questions and a fact sheet, is available on the DOL's website.

Photo credit: U.S. Department of Labor

This past Friday, the United States Supreme Court announced that it would consider whether the Defense of Marriage Act (DOMA) unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions.  A Supreme Court decision nullifying DOMA could have wide ranging impacts, including how the Family and Medical Leave Act covers "caring for a spouse." 

Let me explain how.

The FMLA allows eligible employees up to 12 weeks of job-protected leave to care for a spouse who suffers from a serious health condition.  But who is a "spouse"?  As an initial matter, the FMLA regulations (at 29 C.F.R. § 825.122(a)) look to state law to define the term:

Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.

The FMLA's provisions, however, are further governed under federal law by DOMA, which very clearly states that:

. . . the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

So, even if a state allows same-sex marriage, DOMA does not recognize the union.  As a result, employees who are in same-sex marriages can lawfully be denied FMLA leave to care for their spouses.  Many states have adopted broader versions of the FMLA so as to provide leave to care for a same-sex spouse or civil partner.  The problem for employers in these states, however, is that leave that is not FMLA qualified cannot be counted against an employee’s FMLA entitlement. 

Let's use an example: if an employee is allowed 12 weeks of leave under company policy to care for his same-sex spouse, but later needs an additional 12 weeks of leave for a health condition that qualifies for FMLA leave,  the employer must grant his request for FMLA leave because the FMLA tells us that the initial 12 weeks he took to care for his same-sex spouse did not qualify as FMLA leave and therefore did not exhaust his FMLA leave entitlement.

If the Supreme Court rules that DOMA violates the right to legal equality for same-sex couples who are legally married under state laws where they live, then the FMLA arguably would provide leave for employees to care for same-sex spouses -- at least in states where same-sex marriage is legal. 

Insights for Employers

As I have noted in previous posts, the number of employers who voluntarily are providing leave to domestic partners and same-sex spouses is increasing among Fortune 500 companies and leading business.  

Before we obtain (possible) guidance from the Supreme Court (expected in June 2013), keep the following in mind: if your leave policies provide employees time off to care for a domestic/civil union partner or same-sex spouse, employers cannot count this leave under the employee's 12-week FMLA allotment, since the FMLA does not recognize these relationships.  To ensure that you are not inadvertently setting yourself up for an FMLA interference claim when providing leave to an employee to care for a domestic/civil union partner or same-sex spouse, we recommend that employers contact their employment counsel for guidance to ensure that their leave policies are legally sound.

Late last month, I reported that the Department of Labor had announced proposed changes to the Family and Medical Leave Act regulations with respect to Military Family Leave, Flight Crew FMLA Eligibility and the manner in which employers calculate increments of FMLA leave.

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.

Various news outlets and web sites, including the Washington Post, Fox News and MilitaryFamily.com, have reported that the Department of Labor will propose various changes today to Family and Medical Leave Act regulations regarding military family leave.   Fox reports that Secretary Hilda Solis will make the announcement with First lady Michelle Obama. 

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 a flurry of activity at the end of 2011, several employers contacted me to determine whether the DOL notice and certification forms still were valid, even though they contain an expiration date of December 31, 2011.  In short, employers may continue to use the DOL's FMLA forms, although consider our suggestions below before using these standard DOL forms.

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.

Yesterday, the Equal Employment Opportunity Commission (EEOC) released the much-anticipated final regulations (pdf) for the ADA Amendments Act of 2008. The EEOC will publish the regulations in the Federal Register today, and they will become effective in 60 days, on May 24, 2011. The EEOC has issued a press release highlighting the release of the new regulations.  It also has drafted a "Questions and Answers" guidance sheet and a fact sheet to better aid employers in understanding the final regulations.

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.

Following up on our initial post and previous update regarding the new Genetic Information Nondiscrimination Act regulations (which you may wish to read first), here is what we've learned: 

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.

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.

Continue Reading

On June 22, 2010, the U.S. Department of Labor issued an Administrator Interpretation (.pdf) to clarify the definition of a “son or daughter” under the FMLA to ensure that an employee who seeks time off work to care for a child receives FMLA leave regardless of the employee’s legal or biological relationship with the child.  Although the DOL interpretation arguably does not change existing law, many consider it a huge win for nontraditional families, including families in the lesbian-gay-bisexual-transgender (LGBT) community who, the DOL asserts, “often in the past have been denied leave to care for their loved ones.”

Continue Reading

Have you been concerned that the US Department of Labor in an Obama Administration might reverse many of the "employer-friendly" FMLA regulations (pdf) that took effect in January 2009?  According to the DOL, however, major changes to the regulations is unlikely to happen any time soon.

Continue Reading