The DOL is coming! The DOL is coming! So tighten up your Family and Medical Leave Act compliance efforts.
U.S. Department of Labor branch chief Diane Dawson has announced the agency’s intent to do more onsite FMLA investigations “to increase its investigators’ access to information and save time by reviewing documents and interviewing employees onsite,” Anne Larson, an attorney at Ogletree Deakins in Chicago, told SHRM Online.
A DOL spokesperson mentioned these common FMLA violations:
- Refusing to authorize FMLA leave for an eligible employee.
- Discouraging a worker from using FMLA leave.
- Manipulating an employee’s work hours to avoid responsibilities under the FMLA.
- Making someone’s request for or use of FMLA leave a negative factor in employment actions, such as hiring, promotions or disciplinary actions.
- Counting FMLA leave under “no fault” attendance policies.
Many employers are responding to the increased onsite investigations “by conducting internal audits to ensure they are ready when the DOL knocks on their door,” Larson said.
Larson outlined an FMLA checklist that organizations should review, considering whether they:
- Have an up-to-date FMLA policy in employee handbooks and FMLA forms, to comply with the DOL’s February 2013 regulations.
- Have an FMLA packet to give employees, which includes the company’s FMLA policy, the DOL’s notice of eligibility and rights and responsibilities, the DOL’s designation notice, medical certification forms for health care providers to complete (for example, the WH-380E, Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act)), and the company’s fitness-for-duty certification, for when an employee wishes to return to work after taking FMLA leave.
- Prominently display the DOL’s new 2013 FMLA poster where employees and applicants can see it.
- Maintain complete files for all workers who have requested or taken FMLA leave in the past three years, including dates of any FMLA leaves and copies of all correspondence, notices, certifications, benefits documents and disputes relating to such leave.
- Train managers to recognize when absences or leave requests have FMLA implications.
- Have an attendance policy that complies with the Americans with Disabilities Act and the FMLA.
- Require employees to sign written acknowledgments that they understand that any short-term disability or workers’ compensation leave runs concurrently with FMLA leave.
- Properly designate and manage use of intermittent FMLA leave.
- Count light-duty work as FMLA leave, despite the revised regulations.
- Identify the correct individuals as “key employees” when designating their FMLA leave.
- Have a medical-leave policy for workers who are ineligible for FMLA leave.
Jeff Nowak, an attorney at Franczek in Chicago, recommends that employers also consider whether their FMLA policy addresses matters such as:
- Eligibility requirements.
- Reasons for FMLA leave.
- The definition of the employer’s 12-month FMLA-leave year.
- Requirements for bonding leave/placement in foster care or adoption.
- The employer’s call-in procedures.
- Substitution of paid leave.
- The employee’s obligations in the FMLA process.
- The medical certification process.
- An explanation of intermittent leave.
- Benefits rights during leave.
- Fitness-for-duty requirements.
- Outside work prohibitions during FMLA leave.
In addition, Nowak encourages companies to do a “comprehensive audit of FMLA practices and procedures before DOL comes onsite,” including consideration of the following:
- What procedures do managers use when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies?
- Do the organization’s procedures ensure that all leave requests, regardless of whether “FMLA leave” is mentioned, reach HR?
- How are managers calculating increments of intermittent leave, and are they following DOL’s recent rule on this issue? (The DOL added clarifying language, stating that an employer may not require a worker to take more leave than is necesary to address the situation for which leave is used and that FMLA leave may be counted only against an employee's FMLA entitlement for leave taken and not for time that is worked for the employer.)
- Is the organization complying with the FMLA regulations when seeking medical certification, contacting health care providers to clarify certification, and seeking second and third opinions?
- Are managers properly designating FMLA leave and providing timely notice to employees of the designation?
- Is the company seeking recertification within the time allowed by the regulations or avoiding being overzealous in seeking recertification, in violation of the rules?
- Does the company have compliant procedures for contacting and checking up on an employee while he or she is on FMLA leave?
- Are managers following the regulations’ specific guidelines for seeking fitness-for-duty certifications from employees who return from FMLA leave?
“Employers should have answers to these issues during an audit, and if they don’t, resolving them must be a priority,” Nowak said.
Clean up record-keeping now, Nowak urged. “Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.”
“Employers should have a script or plan to follow when the DOL unexpectedly knocks at its door,” according to Larson. “When the DOL arrives without notice, its intent is to catch the employer off-guard, to quickly gather documents to show the employer’s noncompliance and to interview employees before the employer has any attempt to prep them. A company’s existing customer and service deadlines should be put to good use to reschedule the unannounced inspection at a mutually convenient date and time. That should give the company time to negotiate the documents to be produced, to gather them and to determine what employees to have ready for DOL interviews. Where possible, the employer should attempt to preselect the employees to be interviewed to best showcase its FMLA compliance.”
Joseph Lynett, an attorney at Jackson Lewis in White Plains, N.Y., outlined two main goals for businesses during an onsite audit: “The first goal is consistent communication with the DOL. The second is sound organization of information. Thus, employers may find that they get through a DOL visit with far less pain when one representative of the company coordinates the onsite visit with the various stakeholders within the company and is also the company’s spokesperson with the DOL.”
So get your ducks in a row, including providing FMLA training to managers.
“It’s amazing and, sadly, unacceptable that more employers are not training their managers about FMLA compliance and their role in administering FMLA and following your FMLA policy,” Nowak said. “There are way too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA or did not follow the FMLA regulations. Managers at all levels can drastically increase an employer’s liability when it comes to FMLA. Training them now immediately reduces employers’ risk of liability—both in court and as a result of a DOL investigation.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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