Recently, the new FMLA Branch Chief of the Department of Labor, Helen Applewhaite, gave a heads up to employers to be prepared for on-site DOL visits to check for FMLA compliance.
At a conference in April, Ms. Applewhaite called 2014 a “pivotal” year for FMLA enforcement and she set forth the DOL’s renewed interest in conducting on-site FMLA compliance investigations. She predicted employee interviews will become regular occurrences along with on-site investigations, to help the DOL tackle systemic FMLA issues.
In the past, on-site visits were rare occurrences; however, this announcement by the DOL is a warning signal to employers that it is time to make sure they are FMLA compliant and ready for a visit from the DOL. In light of this notice, employers should focus on the following guidelines in preparing for a possible FMLA compliance investigation:
Get Familiar with the FMLA
- For employers with 50 or more employees, the FMLA may require that the employer provide eligible employees up to 12 weeks of unpaid, job-protected leave for family care or medical reasons.
- Employers should ensure that their employee handbooks include their FMLA policies and that their leave policies are updated to reflect the latest FMLA regulations.
- Employers also should ensure that they are in compliance with the DOL requirement to display the DOL’s FMLA poster in a conspicuous place where employees and applicants can view it.
Keep Updated Records
- The DOL’s focus on “systemic” FMLA issues means it likely will be examining an employer’s records to look for reoccurring or widespread failures in the employer’s FMLA operation.
- Per the DOL website, keep updated FMLA records for each employee for at least three (3) years. Records should be detailed and include the dates and amount of leave, medical certification forms, and any correspondence between the employer and the employee regarding FMLA leave.
Prepare Essential Employees
- As part of an on-site investigation, the DOL intends to interview managers or other such employees in charge of leave requests. It is imperative that these employees be familiar with the FMLA and are able to demonstrate to the DOL that they have been trained on FMLA policies and procedures and are capable of properly handling an employee’s leave request.
- Employers should train all managers on all aspects of FMLA including determining when FMLA leave is applicable; giving proper notices to employees; seeking medical certifications; and calculating increments of intermittent leave. Proper training of such essential employees on FMLA policies and procedures will help avoid litigation and DOL violations.
If you receive notification of a pending investigation or on-site visit, you should contact an employment attorney to guide you through the process of preparing for the investigation, handling the investigation, and dealing with any possible resulting DOL findings.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
