For employers who have been involved in an FMLA investigation conducted by the U.S. Department of Labor, the process can be a bit of a head-scratcher because no two investigations look the same.
The FMLA investigation often starts with a somewhat mysterious phone call from a DOL investigator identifying him or herself as such. What follows, though, is far from certain. Occasionally, the employer is informed why it's being investigated. Other times, it's not. Occasionally, the matter is assigned a case number. Other times, it's not. At times, the DOL uses what appears to be a standard request for information - like this one. Other times, a request for information looks much different - like this other one. [Employer names redacted to protect the innocent.]
Last week, DOL Branch Chief for FMLA Diane Dawson sought to clarify the DOL's investigation process. Speaking at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition (DMEC), Ms. Dawson explained (from the DOL's standpoint) how a DOL FMLA investigation is initiated and what it looks like. Although the presentation provided some valuable insight into the DOL's approach in an FMLA investigation, one nugget of information stood out:
The DOL expects to increase the frequency in which
it comes on-site during an FMLA investigation.
Before we all start panicking, let me remind employers: the DOL always has had the right to conduct on-site investigations -- both announced and unannounced. However, at least in the FMLA context, this approach has been virtually non-existent in my experience and based on anecdotal evidence shared by employers generally. EEOC has increased this practice in recent years, but not the DOL.
Given the infrequency of on-site visits to date, however, the change in the DOL's approach here is noteworthy. In her DMEC presentation, Ms. Dawson reported that the DOL's national office has instructed its regional offices to identify occasions when it would "make sense" to conduct an on-site visit during an FMLA investigation. Examples might include situations where an employer has racked a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred.
So, why is the DOL changing its approach?
The DOL reports that on-site visits are easier for its investigators largely because: 1) it tends to make the investigation less time consuming for the agency; 2) investigators have ready access to records, data, FMLA policies and FMLA forms; and 3) investigators can interview employees face-to-face while reviewing documents on-site.
How Do Employers Prepare for an FMLA Investigation, including an on-site visit?
Given the DOL's new approach to FMLA investigations, Ms. Dawson advises employers to be proactive in their approach to FMLA compliance before the DOL even knocks on the door. I couldn't agree more. It makes good business sense for employers to engage in a self-audit their FMLA policies, forms and practices so they can substantially reduce their risk of FMLA liability in a DOL FMLA investigation or FMLA-related lawsuit.
Whether we agree or disagree with the DOL's new strategy, let's move past that. We need to prepare for the inevitable. So, grab your favorite employment counsel (if there is such a thing?) and start conducting that review! A self-audit should include the following:
Conduct a thorough review of your FMLA policy. Important compliance alert: Ms. Dawson pointed out that the DOL will review an employer's FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee's obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL's FMLA poster "prominently" where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language. (DOL is still working on the new Spanish version.)
Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. Again, your forms must incorporate the recent regulatory changes. A technical violation of the FMLA can be costly (just ask Wachenhut here), so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff. This is no small task. In the DOL's model forms, for example, the DOL failed to include the GINA safe harbor language. What!?! View this post so you know the specific GINA language to add to your certification forms.
Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee's return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL's new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you're not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations' very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don't have answers to these questions (or worse yet, you don't have a clue about what I'm referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
Clean up your recordkeeping now. 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.
Train your employees! Call me a resounding gong (of course, in the most endearing kind of way!), but why aren't more employers training their managers about FMLA compliance and their role in administering FMLA and following your FMLA policy? 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 your liability when it comes to FMLA. Training them now immediately reduces your risk of liability -- both in court and as a result of a DOL investigation.
Did I overwhelm you? This was not my intention, so if you're rattled, I beg a thousand pardons! In an era of rigorous enforcement by the DOL and increased FMLA litigation, we need to take the time now to ensure we are FMLA compliant. The alternative is far too costly.
I welcome your feedback on any thing you believe are critical to the self-audit process above and which I missed. Let's make this a continuing conversation...
(Hat tip to Marti Carti, Chief Compliance Officer at Reed Group, who did a great job outlining many of these self-audit principles during the DMEC presentation with Ms. Dawson.)