DOL Announces Increase in FMLA Audits – Employers Should Be Ready

The U.S. Department of Labor (DOL) announced in February that it would be ramping up audits on employers.

The main targets seem to be the logistics and warehouse industries, though no one is safe.

While the DOL made it clear that one of its priorities is to verify compliance with the Family and Medical Leave Act, this increase in audit frequency will also apply to wage and hour audits.

The DOL also announced that it would be expanding its Wage and Hour Division with 100 new investigators. This lends further credence to the idea that the DOL will be moving forward with its intentions and audits will become more frequent.

How to Prepare for an FMLA Audit

To avoid any potential issues with the FMLA audit, you should conduct self-audits regularly. As part of the process, be sure to:

Check Your FMLA Policy

One of the targets of the audit will be your FMLA policy. Be sure it’s up to date. For example, your employee handbook, if you have one, should include the FMLA policy.

Furthermore, the policy should cover aspects such as:

What requirements must be fulfilled for FMLA leave
What procedures are necessary for employees to call to request leave
The medical certification process
A clarification of what intermittent leave represents
What benefits employees are entitled to while on leave
Requirements regarding the employee’s fitness for work
The substitution of paid leave
Any prohibitions outside work while the employee is on leave
What obligations the employee has as part of the FMLA process
A specification of the 12 months that represent an FMLA leave year
Any obligations connected to bonding leave /adoption or placement in foster care

If any of these are missing, update your policy as quickly as possible.

Display the Poster

The poster should be displayed so employees and any applicants can see it clearly. Be sure it is translated into any languages spoken by a significant portion of your workforce.

Check Your FMLA Forms for Legal Compliance

Any FMLA violation can be expensive, so make sure your forms are in alignment.

It is essential to conduct a comprehensive review of all internal FMLA procedures and practices to ensure they align with legal requirements. Some examples include:

What procedures do managers use when an employee reports a potentially FMLA-related absence? For example, are they asking the right questions to determine if FMLA is applicable? (Why is the employee absent? What critical part of the job can they not do? Will they seek medical attention?)
How is intermittent leave calculated, and does it comply with FMLA regulations?
Is FMLA leave being properly designated? Are employees given sufficient notice of said designation?
Are your procedures regarding verifying the employee’s well-being while on FMLA leave in compliance with regulations? Do you even have such procedures?
Are your requests for recertification in alignment with the permitted time frame laid out by the regulations, or are you being overzealous?If you don’t know the answer to these questions, consider seeking expert employment counsel and involving them in your self-audit.

Get Your Records in Order

The DOL requires you to maintain specific data that should be accurate. Therefore, make sure that you have the following employee data available:

Employee identification data
Payroll information
Dates of any FMLA leaves
FMLA time taken
Copies of any employee and employer FMLA notices
Benefit documentation
Certification forms
Any disputes regarding the designation of FMLA leave

You need to keep these documents for a minimum of three years and they need to be stored separately from the employee’s personnel file.

Get Your Employees Up to Speed

A widespread problem for companies is managers who are not aware of the firm’s FML policy and leave procedures. Many employers have made large payments due to mistakes by the managers.

Protect yourself by providing managers with proper training. It is essential that you take the DOL’s warning seriously. Recent announcements indicate they will be ramping up audits, so make sure you are prepared.