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Department of Labor to Step Up Onsite FMLA Investigations

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While the Department of Labor (DOL) has always had the authority to conduct onsite compliance investigations of businesses for the Family and Medical Leave Act (FMLA), these were rare and far between. However, just last month the DOL announced it intended to increase the frequency of its forays out in the field. In fact, the DOL has stated that these will become standard practice.

While the likelihood of an inspector showing up on your doorstep is slim (but can be increased multi-fold if you have failed to follow FMLA rules applicable to your specific company and a whistleblower has reported violations), there are proactive steps you should take to ensure the legal well-being of your operations:

Perform a thorough review of your FMLA policy. Is your employee handbook up-to-date? Are your policies clearly evident and available to all employees? Have you posted the DOL’s FMLA poster in a prominent place for all employees to see? While your company may fall under minimum requirements for applicability (50+ employees within 75 miles) you still should be adhering to all DOL requirements of notice at a minimum. The devil is often in the details, and while leave for the longer absences (up to 12 workweeks) is easy to track and document, the more intermittent and shorter absences are what create issues.

Ensure your FMLA paperwork is legally compliant. This simply means that notices of eligibility, notices of rights and responsibilities, and any correspondence you use to convey FMLA leave to employees is consistent and kept in a secure area (especially if you do have an unannounced DOL compliance visit and investigation.) There is some disagreement on where this paperwork should be kept, with HR professionals on one side asserting it should be kept in separate files, and others stating that it must be kept in the employees’ individual personnel files. Suffice to say, make sure it is easily accessed upon request (and you should keep it up to three years at a minimum. Personally, I keep employee files permanently, and if you have storage issues, you can always scan the older files electronically.)

Train your employees. Clearly, this applies to larger companies with multiple divisions, but all of your managers should be trained and knowledgeable regarding FMLA compliance and regulations. This alone will drastically reduce your legal vulnerability for claims of FMLA violations.

Be cognizant of any state leave laws. This is self-explanatory, and when in doubt consult with a local counsel or HR professional to determine if any apply.

If you do all of the above and the DOL comes a-knockin’ at your door, you should feel far more confident that you will pass an audit with flying colors.

Hilary Atkins

Posted In: Legal, Management

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