Issue: The U.S. Department of Labor (DOL) is planning to take heightened action this year to ensure compliance with the Family and Medical Leave Act (FMLA), especially for employers in the warehouse and logistics industry. How can your company prepare for an FMLA audit?
Answer: Jeff Nowak, a shareholder with the law firm of Littler Mendelson, notes that companies should make an FMLA self-audit a priority in 2022. Nowak shared the following tips:
1. Conduct a thorough review of your FMLA policy. In an audit, the DOL will review an employer’s FMLA policy to ensure it is up to date, so make sure it is current and contains all required information.
2. Adhere to the posting requirements. Employers must post the DOL’s FMLA poster "prominently" where it can be viewed by employees and applicants.
3. Ensure FMLA forms are legally compliant. Review all existing FMLA forms to determine whether they comply with FMLA regulations.
4. Review FMLA correspondence. FMLA-related correspondence (regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, and second/third opinions) will be reviewed as well, so make sure it is legally compliant.
5. Audit all FMLA practices and procedures. What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? How do you calculate intermittent leave? Do you have compliant procedures for checking up on an employee while he/she is on FMLA leave? HR should have in-house or employment counsel participate in the self-audit to help determine compliance, advises Nowak.
6. Clean up FMLA recordkeeping. Be sure that you maintain all necessary data. Documents should be maintained for three years and should be kept separate from personnel files.
7. Train your employees. Make sure your managers know your FMLA policy and leave procedures. Training managers on FMLA compliance will reduce your risk of liability, both in court and as a result of a DOL investigation.
Source: DOL Announces Ramped-Up FMLA Audits for Employers in Select Industries, by Jeff Nowak; FMLA Insights, February 23, 2022; https://www.fmlainsights.com/dol-announces-ramped-up-fmla-audits-for-employers-in-select-industries.
From WCI's HR Answers Now ©2022 CCH Incorporated and its affiliates. All rights reserved.
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