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SHRM Newsletter: NEW FMLA FORMS APPROVED

03/02/2012

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March 2, 2012

This is Utah SHRM Legal-mail no. 2012-5 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 

CONTENTS:

-  UTAH LEGISLATIVE UPDATE

-  NEW FMLA FORMS APPROVED

-  USE GINA DISCLAIMERS ON NEW FMLA FORMS AND ADA FORMS

-  SENATE REJECTS EMPLOYER MORALITY HEALTH CARE AMENDMENT

-  UTAH COURT DECISION ON EMPLOYER LIABILITY

-  EEOC ISSUES NEW GUIDANCE ON ADA AND USERRA ISSUES

UTAH LEGISLATIVE UPDATE:  There are only a few days left in the 2012 session of the Utah State Legislature, which closes on March 8, 2012.  Again, the current session is more noteworthy for the employment law bills rejected than for those that might become law.  The Legislature has rejected bills that would have: (1) imposed a statewide prohibition on job discrimination based on sexual orientation and/or gender identity; (2) repealed the guest worker provisions enacted last year as part of the Legislature’s immigration law reform package; and (3) imposed stiff penalties on employers for not using E-Verify. With the session rushing to a close, the following two bills (neither of which has even passed a committee yet) also look unlikely to become law. First Sub. HB 196 (text here: http://le.utah.gov/~2012/bills/hbillint/hb0196s01.htm), is a bill that would require public employers to adopt policies prohibiting bullying, which is defined as typically including “(i) repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets; (ii) verbal or physical conduct of a threatening, intimidating, or humiliating nature; (iii) the sabotage or undermining of an employee's work performance; or (iv) an attempt to exploit an employee's known psychological or physical vulnerability.”  HB 106 (text here: http://le.utah.gov/~2012/bills/hbillint/hb0106.htm) would prohibit collective bargaining by public employees except regarding wages and benefits. 

NEW FMLA FORMS APPROVED: The United States Department of Labor (DOL) has issued new Family and Medical Leave Act (FMLA) forms said to be good for use through February of 2015.  Here are the forms and where you can find them online-

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition- found at: http://www.dol.gov/whd/forms/WH-380-E.pdf

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition- found at: http://www.dol.gov/whd/forms/WH-380-F.pdf

WH-381 Notice of Eligibility and Rights & Responsibilities- found at: http://www.dol.gov/whd/forms/WH-381.pdf

WH-382 Designation Notice- found at: http://www.dol.gov/whd/forms/WH-382.pdf

WH-384 Certification of Qualifying Exigency For Military Family Leave- found at: http://www.dol.gov/whd/forms/WH-384.pdf

WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave- found at: http://www.dol.gov/whd/forms/WH-385.pdf

USE GINA DISCLAIMERS ON NEW FMLA FORMS AND ADA FORMS:  As noted in previous updates, the DOL FMLA sample forms do not refer to recent developments in the federal Genetic Information Nondiscrimination Act (“GINA”).  GINA prohibits employers from discriminating based on genetic information and from gathering such information about an employee and/or his/her family member.   Recent GINA regulations help provide employers with a potential “safe harbor” from liability under the law if certain disclosures are made to employees and their health care providers. I have seen numerous legal commentators recommend that employers add the GINA safe harbor language to their FMLA forms.  Here (below) is the language I have seen recommended: 

Employee's Serious Health Condition – 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.

Family Member’s Serious Health Condition – 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 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. Please provide medical history information regarding your patient only to the extent necessary to fully respond to all relevant items below.

Note:  This language should be added to the FMLA medical certification form or other written documentation that accompanies the form, as well as forms requesting medical information for purposes of the Americans With Disabilities Act Amendments Act (ADAAA) and also should be used when a fitness for duty certification is requested. 

SENATE REJECTS EMPLOYER MORALITY HEALTH CARE AMENDMENT:  The United States Senate has rejected an amendment that would have allowed employers to decline to provide health care coverage for employees based on the employer’s moral or religious concerns.  Proponents of the bill advocated it as a freedom of religion measure.  Opponents expressed concerns that it was so broadly-worded that it would have allowed employers to deny coverage of HIV treatment or of medical issues related to the pregnancy of an unwed mother.  The House of Representatives may take up the issue now.  The issue, of course, is also one being discussed in the context of the Republican presidential nomination battle and as part of the Obama Administration’s regulatory implementation of health care reform.

UTAH COURT DECISION ON EMPLOYER LIABILITY: The Utah Court of Appeals has issued an opinion again confirming that employees causing injury to others must be acting within the scope of their employment in order for their employer to be held liable for their conduct.  The case involved an employee injured on a construction site. You can read the new decision here:
http://www.utcourts.gov/opinions/appopin/sutton020212.pdf

EEOC ISSUES NEW GUIDANCE ON ADA AND USERRA ISSUES:  The Equal Employment Opportunity Commission (EEOC) has issued a new guidance for employers regarding the interplay between the ADA Amendments Act (ADAAA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The guidance explains how protections for veterans with service-related disabilities differ under the ADAAA and USERRA, and how employers can prevent disability-based discrimination and provide reasonable accommodations.  You can read the new guidance here:
http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.