Every New Year brings the tradition of making resolutions—whether it’s to lose weight, save money, volunteer more, or travel. While those are admirable personal resolutions, companies should have their own resolutions to ensure their businesses are on track for the upcoming year. A top priority should be to get your Family and Medical Leave Act (FMLA) program in compliance.
Why is FMLA compliance important?
Helen Applewhaite, the new chief of the U.S. Department of Labor’s (DOL) FMLA branch, provided insight into what employers can expect from the DOL under her stewardship. She revealed the focus is on- site investigations. She says they will increase the efficiency of investigations because DOL staff will have ready access to documents and employees. The DOL will focus on systemic FMLA issues and on employee groups who tend to request more FMLA leave. Applewhaite also noted that managers don’t know the FMLA very well. The DOL will put managers and employees to the test to make sure everyone knows the proper processes and procedures. And the DOL will penalize companies for noncompliance.
How to prepare for DOL being on site
An internal FMLA assessment is a great place to start. A self-audit will put a spotlight on your problem areas so you can correct them before the DOL investigates. How so? It’s an objective evaluation of your operational FMLA policies, practices, and processes to determine whether they are adequate, legal, and effective. Your FMLA program could leave you open to an investigation or a legal claim if it doesn’t meet those criteria. Every company should test its processes and procedures once a year. In addition, anytime there are changes in leave laws, you make changes in senior management, you open facilities in a new state, or excessive attendance or disciplinary problems become unmanageable, it’s time for an assessment.
The costs will vary greatly depending on the size and complexity of your company and who performs the assessment. However, it will always be less expensive than defending against a lawsuit or paying fines to the DOL. The DOL estimates that the cost of losing an FMLA case at trial is $500,000, assuming the employee was earning $40,000 per year and has two years of unemployment by the time of trial.
If someone within your company has the expertise, time, objectivity, and influence to perform the assessment, then it can be done in-house. If not, it’s best to seek outside help to objectively assess your leave program and determine if what you’re doing is acceptable or if you’re setting yourself up for a DOL investigation.
Don’t just pay lip service
The intent of the assessment is to find flaws and inconsistencies in your policies and procedures. You will need to quiz your HR personnel and supervisors as well as collect all relevant documents. Be sure to include handbooks, acknowledgment forms, new employee orientation packets, time-off policies, DOL posters, job descriptions, FMLA records, and records of supervisor training for time-off policies.
Next, prepare checklists to use during the assessment that reflect the needs of your company and key issues such as attendance and termination policies, notice requirements, record-keeping practices, and FMLA forms, correspondence, and training. Examples of questions to ask include: “Do you include job descriptions with medical certifications?” and “Do you have procedures for ongoing FMLA compliance training for supervisors?” Once you have everything to conduct the assess ment, compare the DOL regulations and written DOL policies to the answers you received from HR and your supervisors, looking for differences between what should happen and what actually happens. Note areas that need improvement, and prioritize them. Make sure to notify top management about any significant pervasive issues and involve legal counsel. Be warned: If you conduct an assessment but do nothing, the DOL may perceive your inaction as willful noncompliance. Unlike other New Year’s resolutions, this one is all or nothing.