SOME FMLA UPDATES

 

New DOL FMLA Forms.

Early this summer, the Department of Labor updated the model FMLA Notices and Medical Certification forms. Interestingly, there are not a lot of changes to the forms. The only notable change is a reference to the Genetic Information Nondiscrimination Act. That Act, effective in 2008, requires that employers restrict their requests for health care information regarding employees so that they do not acquire genetic information regarding employees. The DOL added the following simple instructions to the FMLA forms: “Do not provide information about genetic tests, as defined in 29 CFR §1635.3(f), genetic services, as defined in 29 CFR §1635.3(e), or the manifestation of decease or disorder in the employee’s family members, 29 CFR §1635.3(b).” These updated forms may be used at least through their set expiration date of May 31, 2018.

Many employers already have included GINA disclaimers in their FMLA paperwork and those disclaimers likely are more reader friendly than the one endorsed by the DOL above. For example, FMLA forms prepared by others often added what was known as GINA “safe harbor language” to the medical certification request forms. Those forms provided more descriptive explanations of what the completing party needs to know, such as language (1) advising health care providers that GINA prohibits employers and others from requesting or requiring genetic information of an individual or family member of an individual except as provided by the GINA law. And, that (2) health care providers should not share any genetic information when responding to the medical certification request.

The DOL’s updated FMLA forms did not add any changes to remind users that now same sex spouses are eligible for FMLA benefits. In order to provide FMLA rights to a legally married same sex couple consistent with the United States v. Windsor decision and the President’s directive in June 2013, the Department subsequently issued a final rule on February 25, 2015, revising the regulatory definition of “spouse” under the FMLA. The final rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal, same-sex marriages may take FMLA leave for their spouse or family member’s qualifying condition regardless of which state they live in. The final rule was effective on March 27, 2015.

Now, eligible employees are able to take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition, take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service, or to take military caregiver leave for their lawfully married same-sex spouse. The definitional change also entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the “in loco parentis” requirement of providing day-to-day care or financial support for the child is met. Finally, the change also entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent regardless of whether the stepparent ever stood “in loco parentis” to the employee.

 

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