The DOL Is Set to Ramp Up Audits
By Alexander J. Cerbo, Esq.
The Department of Labor (DOL) has announced it intends to increase Family and Medical Leave Act (FMLA) audits on employers. Businesses across many industries continue to face scrutiny by the DOL on their FMLA procedures due to an increase in FMLA violations.
Prepare yourself now and give your FMLA procedures a spring cleaning. The following steps are a great way to stay prepared:
Review your FMLA policy. It needs to include eligibility requirements (i.e., the reasona for FMLA leave), call-in procedures, an explanation of benefit rights during leave, and much more.
Examine all existing forms to ensure they comply with FMLA regulations. The DOL loves to examine FMLA forms during an audit.”
In addition to providing your FMLA policy in your handbook, post it prominently where it can be viewed by your employees and applicants. Keep in mind that if a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language as well.
Review your FMLA forms. Examine all existing forms to ensure they comply with FMLA regulations. The DOL loves to examine FMLA forms during an audit. You will also want to review legally compliant correspondence that may apply to FMLA leave.
Review your FMLA practices and procedures. When doing so, ask yourself: What procedures are used by my managers when an employee reports an absence that may be covered by the FMLA? Do our procedures ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or HR? Do we have procedures in place for contacting employees while they are on FMLA leave? All these questions and others are important to keep in mind.
Also, be sure to maintain all employee data the DOL will want to see. Keep in mind the DOL tends to conduct broad record requests, so you will want to make sure your recordkeeping is consistent with all regulations and requirements. And remember: all FMLA-related documentation, such as above, must be kept for a minimum of three years and be kept separate from an employee’s personnel file.
Train, train, and train! Train your employees on all things FMLA! For most companies, managers are the first line of contact. If they are not comfortable with proper FMLA leave procedures now, this may create issues later on. You will greatly reduce the risk of a potential FMLA violation in the future by training now.
FMLA audits are not cut and dry and need to be taken seriously to avoid any potential violations. Lastly, do your managers understand how FMLA, PFMLA, and ADA intersect? They should.
Taking the proper steps now can help make a DOL audit go more smoothly.
Alexander Cerbo is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.