The Department of Labor (DOL) is back at the FMLA audit game. This is your not so gentle reminder that employers will continue to face scrutiny on their FMLA procedures, and that they increasingly face liability.

It is time for a self-audit or outsource the audit to a reputable and knowledgeable firm.

  1. 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. Are your FMLA policies up to date? Is your FMLA policy included in your employee handbook, along with the contents of the FMLA poster?
  2. Adhere to the Employer Posting Requirements. 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.
  3. 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 are all up to snuff. Remember California Certification Forms are different then Federal requirements.
  4. Prepare legally compliant FMLA correspondence. Be sure to 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.
  5. Conduct a comprehensive audit of your FMLA practices and procedures.
    • What procedures are used when an employee reports an absence that may be covered by the FMLA?
    • Are your asking the correct questions to determine whether FMLA applies?
    • 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?
    • How are you calculating increments of intermittent leave?
    • 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?
    • 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
    • Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave?
    • Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave?
  6. Clean up your recordkeeping now. Employers should have their employees’ FMLA information and documentation, separate from the personnel file and maintained for at least three years.
  7. Train your employees! The DOL knows one important fact: your supervisors and managers do not know your FMLA policy and leave procedures, so you better get a handle on this because these managers are creating a liability for you. Indeed, there are far 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.

Source: JorgensenHR & FMLA Insights Jeff Nowak

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