Update the FMLA Certification to Include GINA Language

By: Jacqueline B. Jones

Are you a business owner? A human resources manager? If you answer yes to either of these questions, you need to be updated on this following FMLA issue:

Update the FMLA Certification to include GINA language.

The Family and Medical Leave Act (“FMLA”) requires all public employers and private employers with 50 or more employees to provide up to 12 weeks of unpaid leave for a serious health condition of an eligible employee or a member of the employee’s family or 26 weeks of leave related to care for a covered military service member. The United States Department of Labor has issued forms for employers to use in administrating the FMLA leave. Employers need to update one of the FMLA’s health care certification forms to comply with the Genetic Information Nondiscrimination Act (“GINA”).

GINA is a federal law enacted in 2008 and provides for confidentiality concerning an employee’s genetic tests and services. It broadly covers an employee’s family medical history and employers may inadvertently receive this type of information when an employee requests FMLA leave. Employers should try to avoid acquiring genetic information about the employee when an employee is seeking FMLA leave for his or her own serious health condition. To minimize this potential, an employer should include the “Safe Harbor” language that is in GINA’s regulations onto this health certification form to be completed by the employee’s health care provider. The Safe Harbor language should not be included with the health care provider’s certification form to an employee’s family member or military service member because the employer may need family medical history information to determine if that individual’s health condition qualifies the employee for FMLA leave.

Employers should update the FMLA Certification of Health Care Provider for Employee’s Serious Health Condition (Form WH-380-E) to include “the Safe Harbor” language as follows:

“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 members 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 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.”

This language can simply be typed on a separate sheet of paper and attached to the FMLA Certification (Form WH-380-E).


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