Posted in: Employment law, Health care, In this week's e-newsletter, Latest News and Views, Legal and compliance
What’s worse than needing to tangle with changes in how FMLA is applied to your employees? Try tangling with those changes when they violate federal law!
Many HR pros will agree that interpreting and applying the Family and Medical Leave Act can be one of the more challenging aspects of the job.
Start tossing in curve balls like the Genetic Information Nondiscrimination Act (GINA), and the difficulty factor grows immensely.
Here’s a significant recent development:
The Department of Labor issued an updated version of its Certification of Health Care Provider for Employee’s Serious Health Condition (covered under the FMLA).
The form — Form WH-380-E — was released March 1 to replace the previous Form WH-380-F.
But there’s a problem: The new version of the form requires information that violates GINA, which strictly limits disclosure of certain medical information.
You still need to use the new version of the form.
But consider taking these two steps to protect HR and your company from overstepping the boundaries of what you can ask employees about their health.
1. Redact — omit, cross out — Section III, which is supposed to be filled out by the employee’s healthcare provider. That includes specific information from your employee’s healthcare provider; Part A: Medical Facts, and Part B: Amount of Leave Needed.
(Omitting Section III guts the document and renders it virtually useless.)
2. Also, legal experts advise that HR people turn to GINA’s “Safe Harbor” language when asking for potentially sensitive information. If the request for medical information includes the legalese “Safe Harbor” language, it usually excuses you from blame if someone contests the request later.