DOL Increasing Onsite FMLA Investigations
The United States Department of Labor (“DOL”) is increasing the frequency of onsite FMLA investigations to ensure that employers comply with the 21 year old leave law. Earlier this year, newly appointed FMLA Branch Chief Helen Applewhaite described 2014 as a “pivotal year” for FMLA enforcement and underscored the DOL’s emphasis on performing compliance investigations—particularly on-premises FMLA investigations. This subtle warning should be heeded by all businesses that may not be ready for a knock on the door by a curious federal investigator.
What is Prompting the Increase?
The DOL may be ramping up on-site FMLA investigations for a number of reasons, including:
- To expand their investigators’ access to information;
- To facilitate face to face communications with employees and line managers;
- To save time, and reduce the effort of conducting an investigation, and ultimately;
- To catch more FMLA violators
Although the DOL has always had the authority to perform on-premises investigations, this investigatory tactic has more commonly been used to explore wage & hour violations under the Fair Labor Standards Act. Until now, onsite FMLA investigations have been scarce.
How Can I Prepare?
To be prepared for an onsite FMLA visit to your facility, there are several proactive steps you should take. These steps include:
- Making sure the most current poster summarizing the major provisions of the FMLA is distinctly displayed where it can be readily seen by employees and applicants. A covered employer should display this poster even if it has no FMLA eligible employees. When an organization’s workforce is comprised significantly of workers illiterate in English, the employer must provide the poster in the language in which employees are literate.
- Reviewing your written FMLA policy to ensure it complies with the FMLA regulations. And if your company has an employee handbook, making sure your FMLA policy is included.
- Ensuring that your FMLA forms and job descriptions (for use with medical certifications and fitness-for-duty certifications) are current. Up-to-date FMLA forms can be found on the DOL’s website or should be prepared in conjunction with legal counsel.
- Analyzing your FMLA procedures to determine whether the proper company representatives are receiving employee leave requests. To avoid mistakes, it’s best if leave requests are centralized in the HR department or in a department specifically created to handle leaves. HR professionals skilled in the rules set forth in the FMLA regulations are your top protection against FMLA non-compliance and your best bet to shine during an onsite DOL investigation.
- Evaluating your recordkeeping practices. Records specified by the FMLA regulations should be kept for no less than three years and must be made available for inspection, copying, and transcription by DOL representatives. Documents relating to medical certifications, recertifications, or medical histories should be retained as confidential medical records in files separate from customary personnel files.
- Ensuring that managers receive proper FMLA training. Managers can greatly enhance an employer’s FMLA liability if they deal with a leave request or a leave of absence inappropriately. Not only does training managers assist employers in FMLA compliance, but it also prepares these managers to answer questions in the event they are interviewed during an onsite FMLA visit. Remember, managers should be trained, trained, and trained again.
The Bottom Line
This aggressive switch to more on-site FMLA investigations does not affect an employer’s underlying compliance requirements; however, it does place them at greater risk of the DOL uncovering an FMLA violation. For one thing, onsite investigations are dynamic. Investigators have more ready access to your employees and documents, and the immediacy means that everyone in the process – employees, managers, and HR – must have a clear sense of how the FMLA and leave administration process works. Your organization should be skilled not only at following the FMLA, but of documenting your compliance. And be mindful that now is the time to get ready for an FMLA investigation because investigators can appear on your doorstep at any time, with or without notice.