This past December, the Department of Labor quietly turned its FMLA enforcement over to a new leader. After the retirement of FMLA Branch Chief Diane Dawson, who led the DOL’s FMLA enforcement for several years, the DOL turned to longtime DOL FMLA policy guru Helen Applewhaite to head up the agency’s FMLA efforts. (DOL doesn’t publicize these personnel moves, nor does it make available a bio on the new FMLA branch chief.) In her role, Ms. Applewhaite oversees the development of regulations and other guidance regarding the FMLA and gives direction to DOL investigators on FMLA matters. Working her way up from a wage and hour investigator nearly 25 years ago, Ms. Applewhaite played a key role in the changes to the 2009 FMLA regulations and 2013 regs.
Earlier this month at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition, Ms. Applewhaite gave employers a snapshot of what the DOL’s FMLA enforcement efforts will look like under her leadership.
Calling 2014 a “pivotal” year for FMLA enforcement, Ms. Applewhaite focused much of her presentation on the DOL’s renewed emphasis on conducting compliance investigations with an emphasis on-site FMLA visits to ensure compliance. We were the first to report on this DOL initiative last year under previous FMLA Branch Chief Dawson. Some of what Ms. Applewhaite shared was more of what we have heard before: that DOL has the authority to come on-site whenever it deems it appropriate, and that the agency’s focus is to bring employers into compliance with the law and remedy any FMLA violations. That said, Ms. Applewhaite shared a few nuggets that employers should be aware of:
- On-site investigations are the new norm. As I referenced in my blog post last year, the DOL announced in April 2013 that it would increase the occasions when it comes on site for an FMLA investigation. At that time, however, DOL appeared as though it would pick and choose when it would come on site, focusing on situations where an employer has accumulated a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred. Ms. Applewhaite signaled that we should be prepared for DOL to come on site far more often in the future. In practice, this approach seems to be true. I have been involved in a number of DOL investigations over the past year, and in nearly all of them, the investigator initially indicated that DOL would come on-site to interview employees and review FMLA records. Some actually occurred, others didn’t. Nevertheless, on-site FMLA investigations are the reality. Here. Now.
- The DOL is focusing its attention on systemic FMLA issues. Sound familiar? If you’ve been involved in any EEOC investigations over the past few years, you know what’s coming. Whether a single or multi-employee charge of discrimination, the EEOC has become known for broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions. EEOC investigations effectively have become mini-trials, requiring production of tons of information as the agency searches for violations far beyond the one complained of in a single charge. Might the DOL follow suit? My sense so far is “yes,” since some of the same information recently has been requested of my clients. As confirmed this month by Ms. Applewhaite, DOL’s standard request will seek information for a two-year period.
- According to Applewhaite, DOL will give particular attention to those areas within your organization where leaves of absence tend to be more frequent. In these areas, there is a greater chance that the employer has not complied with FMLA notice and/or certification requirements. DOL also finds that front-line managers in these areas tend not to be familiar with the FMLA and its obligations.
- Employee interviews will become standard practice in an on-site visit. Why? DOL wants to know that your managers and individuals in the leave process are familiar with your FMLA policy, and it seeks to double-check your leave procedures by requiring multiple individuals to attest to them. Managers will be expected to walk a DOL investigator through an employee’s leave request, where various FMLA touch points will be tested. [Read: begin your manager training now!]
Insights for Employers
Don’t cry. We’ll get through this. With flying colors, as they say. I repeat below the same suggestions I have shared before. Given DOL’s enforcement activity in this area, you need to be prepared for your inevitable FMLA investigation. So, grab your favorite employment attorney and start conducting a self-audit. Such an audit should include the following:
- Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
- Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster ”prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language. (DOL is still working on the new Spanish version.)
- Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. Again, your forms must incorporate the recent regulatory changes. A technical violation of the FMLA can be costly (just ask Wachenhut here), so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
- Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
- Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
- Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.
- Train your employees! If Applewhaite said it once, she said it several times during her presentation: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because they are creating a liability for you. I agree with Ms. Applewhaite on this one. There are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.
Don’t become the latest DOL press release when it comes to FMLA. Heed the DOL’s warning that 2014 is a pivotal year and get your house in order now.