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March 6, 2012

FMLA Model Forms Revised with New Approval Dates

As mentioned in the January, 2012 Benefit Beat, certain FMLA forms issued by the DOL’s Wage and Hour Division were awaiting approval by the Office of Management and Budget (OPM) for use beyond the December 31, 2011 expiration date stated on the forms.  The OPM has recently released the following FMLA forms that are approved for use until they expire on February 28, 2015:

It is important to note that the OPM approved these documents without any substantive change.  Employers might want to consider adding information to the documents specifically relating to the Genetic Information Nondiscrimination Act (GINA), as well as the expansion of military exigency and caregiver leave provisions enacted in 2009.

With regard to GINA, the law restricts employers from accessing genetic information. For this reason, employers may want to direct health care providers to make certain that their responses do not include genetic information.  The EEOC provides some suggested language that could be incorporated into communications, such as the FMLA medical certification form or other form that requests medical information, or included in the cover letter to the provider:

“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.”

The National Defense Authorization Act for Fiscal Year 2010, enacted on October 28, 2009, made two changes to the military leave provisions of the FMLA, as follows:

  1. Military exigency leave is now available not only to reservists, but to active military families, as well.
  2. Caregiver leave is available, not only to families of active military, but also to families of veterans.

Consideration should be given to adding information about these expansions to the relevant FMLA forms.  It is anticipated that the DOL will be issuing final FMLA regulations relating to military leave in the not too distant future.  Once these regulations are finalized, it might be appropriate to further modify these forms.

 

The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

 

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