Standard FMLA forms posted on the Department of Labor website drafted in January 2009 expired on December 31, 2011. Rather than revising the forms as expected to include certain changes in the law, the old forms have been re-posted by the Department of Labor with the only change a new expiration date of February 28, 2015. Two important considerations that are not reflected in the re-posted forms include reference to use of genetic information under the Genetic information Nondiscrimination Act, and changes to military family leave amended in 2010 under the National Defense Authorization Act.
GINA, or the Genetic Information Nondiscrimination Act, prohibits employers and medical providers from requesting or providing genetic information in a request for medical certification. This prevents potential misuse of genetic information that could result in discrimination in health insurance and employment. Genetic information includes genetic testing, participation in genetic research, request for genetic services or manifestation of a genetic disease or disorder, in the covered individual, family member, fetus or embryo. To prevent inadvertent acquisition of genetic information that could be considered a violation the employer must specifically direct the employee and health care provider from whom it requests certification information not to provide genetic information. While such language is not included in the Department of Labor forms, the EEOC has suggests specific “safe harbor” language should be added to any form requesting health related information from employees.
The National Defense Authorization Act expands the qualifying reason for military family leave for up to 12 weeks of unpaid leave under FMLA to include the call to service or return from deployment, of a spouse, child or parent. This allows employees to meet family needs as service members prepare for or return from deployment. Additionally, the Act more than doubles the amount of FMLA leave available to care for a family member injured in the line of duty. A spouse, parent, child or next of kin may take up to 26 weeks of unpaid leave to care for a service member recovering from a service related injury that occurred in the last five years while the individual was on active military duty. The Department of Labor announced the intention to develop a new, presumably separate form for the certification of serious injury or illness to a service member, subject to notice and comment by the public at some future unspecified date.
Total annual leave under FMLA cannot exceed 26 weeks a year, and separate reasons for leave run concurrently. Leave may be taken intermittently, as a block of time, or on a reduced schedule as permitted under FMLA.
University of Illinois FMLA forms and information available through the campus website and in NESSIE are fully compliant with requirements of the Department of Labor, GINA and the National Defense Authorization Act as they stand today. Stay tuned for further developments.
