The forms that most employers use to administer leave under the Family and Medical Leave Act can still be used even though they expired on December 31, 2011.
The forms expired because of a federal law requiring government agencies to submit forms to the Office of Management and Budget for approval. The OMB can approve forms for a maximum of three years. The FMLA forms were approved in 2008, hence the 2011 expiration. The Department of Labor is seeking renewal of the OMB’s approval and the forms can be used in the meantime.
Employers should note one important change that has occurred since the forms were issued. Employers should be adding language to FMLA medical certification forms in response to regulations issued last year on the Genetic Information Nondiscrimination Act. The GINA regulations say that if employers instruct health care providers not to provide genetic information when responding to medical requests, they have a defense or a “safe harbor” against GINA claims if genetic information is provided. The regulations even provide acceptable language. The FMLA forms available on the U.S. Dept. of Labor website do not currently contain this language and may not even when the forms are renewed. MSEC’s sample FMLA forms do have this language and can be accessed here on our website.