Viewpoint: A Checklist to Prepare for the DOL's Expansion of FMLA Audits

In February, the Department of Labor (DOL) announced that it would ramp up Family and Medical Leave Act (FMLA) audits—as well as wage and hour audits, generally—on employers, particularly those in the warehouse and logistics industries.

Back in 2014, the DOL warned that it would increase the frequency of its FMLA investigations and look for opportunities to come onsite to review employer policies and practices in FMLA administration. The DOL made good on that promise, as the back half of the Obama administration's second term saw a marked increase in FMLA investigations and far more aggressive tactics, all in the name of ensuring employer compliance with the FMLA.

Although FMLA audits cooled slightly during the Trump years, the Biden DOL has promised to take "heightened action" to make FMLA and wage and hour compliance top priority again.

The DOL is back at the FMLA audit game, so all of us are wise to prepare for the inevitable.

Insights for Employers

Employers will continue to face scrutiny by the DOL on their FMLA procedures, and increasingly face liability where their FMLA practices do not adhere to the FMLA regulations. As you prepare your HR and legal budgets for 2022 and beyond, make an FMLA self-audit a priority. Your self-audit should focus on the following:

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. If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? 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.
• Call-in procedures.
• Substitution of paid leave.
• Employees' 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.

If not, take another look and update those policies now.

Adhere to the Employer Posting Requirements.

In addition to posting your FMLA policy in your handbook, 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.

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 Rights and Responsibilities, certification forms, Designation Notice) are all up to snuff. Take a peek here at my analysis of the new FMLA forms issued by the DOL.

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.

These communications also will be reviewed by the DOL during an investigation.

Conduct a comprehensive audit of your FMLA practices and procedures.

A couple immediately come to mind:

• What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.)
  

• Do the procedures you follow ensure that all requests for leave, regardless of whether "FMLA leave" is expressly requested, reach the appropriate manager or HR?<
  

• How are you calculating increments of intermittent leave—and are you following the regulations in calculating FMLA 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 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 employees while they are on FMLA leave?
  

• Are you following the regulations' very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave?

If you don't have answers to these questions (or worse yet, you don't have a clue about what I'm referring to), all the more reason to pull in your in-house or employment counsel on this self-audit.

Clean up your recordkeeping now.

Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees':

• Identifying information.
• Payroll data.
• Date(s) of FMLA leaves.
• FMLA hours/days/weeks taken.
• Copies of employer and employee FMLA notices.
• Certification forms.
• Benefit documents.
• Disputes about designation of FMLA leave.

These documents should be maintained for at least three years, and they should be kept separate from the personnel file.

The DOL tends to make fairly broad information requests, so excellent recordkeeping is imperative.

Train your employees.

Over the years, the DOL has picked up on one important fact: your 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. There are far too many examples of employers who have paid out a 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.

Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability—both in court and as a result of a DOL investigation. Heed the DOL's warning that this is a pivotal year and get your house in order now.

Jeff Nowakis a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where this article, which has been slightly edited from the original, first appeared. © 2022 Jeff Nowak. All rights reserved. Republished with permission.

Related SHRM Article:

FMLA and Other Workplace Posters: Same Requirements, Higher Fines, SHRM Online, January 2022

[Visit SHRM's resource page on the Family and Medical Leave Act.]