The DOL is directing investigators to insist on production of additional information from employers particularly with respect to payroll practices. There is a new format for the long-itemized list of information DOL seeks in an FMLA investigation.
INSIGHTS FOR EMPLOYERS
BIG. RED Flags all over the place here. When the DOL comes knocking with an FMLA audit, identify a strategy. Make an FMLA self-audit a priority for your workplace in the New Year.
- Conduct a thorough review of your FMLA policy.
- The DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure they are up to date.
- 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?
- Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
- 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.
- Conduct a comprehensive audit of your FMLA practices and procedures:
- What procedures are used by managers when an employee reports an absence that may be covered by the FMLA?
- 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?
- Are you complying with the FMLA regulations when seeking medical certification, curing certification, and contacting health care providers to clarify certification?
- Are you properly designating FMLA leave and providing timely notice to employees of the designation?
- 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?
- Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave?
- How are you calculating increments of intermittent leave and are you following the regulations in calculating FMLA leave?
- Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave?
- Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and is 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. Maintained all documents for at least three years, and they should be kept separate from the personnel file.
- Train your employees!
Over the years, the DOL has picked up on one important fact: your supervisors and managers do not know your FMLA policy and leave procedures.
JorgensenHR assist employers with developing compliant FMLA processes and procedures as well as handling leaves of absence for employers.
If you would like more information please contact us at info@jorgensenhr.com or 661-600-2070.
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