Time to Prepare for an On-Site FMLA Investigation


Employers can expect more on-site audits from the U.S. Department of Labor (DOL) as part of its normal procedures in investigating Family and Medical Leave Act (FMLA) violations, according to statements made by FMLA Branch Chief Helen Applewhaite, at a recent FMLA/ADA compliance conference.

Applewhaite called 2014 "pivotal" for FMLA enforcement. Highlights of her presentation, Focus on FMLA—Strategies to Sharpen Compliance, include the following points:

  • Like the Equal Employment Opportunity Commission, the DOL is focusing its FMLA investigations on systemic issues. Consequently, employers may find themselves facing broad requests for detailed information about their FMLA administration processes covering multiple years, locations and personnel actions.
  • Particular attention will be given to those areas in an organization that tend to see more frequent leaves of absence - areas where managers may not be as familiar with the requirements, thus increasing the potential for FMLA violations
  • Employee interviews will become standard practice in an on-site audit as investigators seek to determine how familiar staff is with an employer's FMLA policy

Employers should be ready at any time for a DOL visit. Here are six tips to prepare for an on-site FMLA investigation:

  • Conduct a thorough internal audit of the organization's FMLA policy. Make sure the FMLA policy and all related forms are updated to incorporate March 2013 regulations and that employee handbooks include the FMLA policy.
  • Adhere to the Employer Posting Requirements. Employers must ensure the DOL’s FMLA poster is displayed "prominently" where it can be viewed by employees and applicants. Employers must also provide a poster in an alternate language if a substantial portion of the workforce speaks a language other than English.
  • Ensure all FMLA forms and correspondences are legally compliant. Examine all existing FMLA forms — Notice of Eligibility and R&R Notice, certification forms, Designation Notice, etc. — to determine whether they comply with the most recent FMLA regulations. Employers should implement and review all FMLA correspondence certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions, etc. to ensure they will stand up to DOL review.
  • Review FMLA practices and procedures. Employers should ensure the appropriate personnel are receiving leave requests and that managers or human resources personnel are using the proper FMLA practices and procedures. For example, managers need to make sure they are correctly determining whether an employee absence is covered by the FMLA and whether they have proper medical certifications and recertifications.
  • Ensure proper recordkeeping. The DOL will be looking for a variety of data, including employees' identifying information, payroll figures, dates and amount of FMLA leave taken, copies of FMLA notices, forms, benefits documents and other pertinent information. Such materials should be maintained separately from personnel files. Finally, although the DOL's standard request for information covers a two-year period, it’s a good idea to keep such records for at least three years.
  • Train employees. The DOL expects managers to know FMLA policy and leave procedures inside and out, making training a crucial step in avoiding FMLA violations.

Employers need to prepare now for this renewed focus on FMLA enforcement and, in particular, the very real potential for on-site audits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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