FMLA Audits On the Rise: Are You Ready?

by Robert on September 19, 2014

Is your organization prepared to pass a Department of Labor (DOL) investigation into Family and Medical Leave (FMLA) compliance?487273675

The DOL’s new FMLA Policy Enforcement Chief, Helen Applewhaite, has announced stepped-up enforcement of leave administration, declaring 2014 to be a decisive year for FMLA enforcement. The DOL will be conducting on-site audits of employers’ procedures—including manager and employee interviews—to determine FMLA compliance, with particular focus on systemic FMLA issues and workplace areas where leaves of absence tend to be more frequent.

In this first of two blog posts, we’ll explore what you can do to prepare for a DOL compliance audit, and next month we’ll discuss workplace disability leave administration, and its importance to the overall audit.

Preparing for the DOL’s FMLA Audit

The DOL published its Notice of Proposed Rulemaking to revise the definition of spouse under the FMLA in June. Last August, the DOL updated its public guidance to remove any reference to restrictions imposed by the Defense of Marriage Act (DOMA), expressly noting that the FMLA’s definition of spouse covers same-sex spouses, but only those residing in states recognizing such marriages. This latest revision uses the “place of celebration” standard to determine FMLA eligibility, permitting a qualified employee in a legally recognized same-sex marriage to take a job-protected leave of absence for his or her spouse or family member regardless of where he or she lives.

“Previously, administrators wrestled with conflicting guidance for same-sex married couples and may have had a hard time keeping things straight when it came to cafeteria plan elections, COBRA, ERISA and FMLA, so from that perspective the revision should be a welcome change for most employers,” says Lockton Companies Assistant Vice President and HR Consultant Stacie Engelmann.

“But this also means that a number of employees who historically have not been eligible for FMLA and generally could only use their sick or vacation time (as applicable), will now be eligible to take up to 12 weeks of leave protected by the FMLA to care for their same-sex spouse with a serious health condition,” Engelman adds, and advises: “Although health reform is top-of-mind right now, employers still need to remember the risks associated with improper FMLA administration, including fines associated with a failed audit.”

To prepare for a DOL on-site audit, Engelmann’s team recommends:

  • Reviewing your policy: Have you made the 2013 revisions (please refer back to February 2013 and July 2013 HR Bulletins). Are you watching for any updates you may have to make after this year’s revisions? Are you sharing your policy with employees?
  • Sharing with employees: Do you have the current FMLA poster in the required locations? Are you sharing your organization’s policy and required notices with employees? Do your employees know their rights and responsibilities under FMLA and how to request it when needed?
  • Training supervisors: Do your supervisors know what might constitute a request for leave so they can put you on notice? Do your supervisors understand the requirements and protections of FMLA leave so they’re not inadvertently violating the regulations?
  • Making sure to use up-to-date forms and legal correspondence with employees: Are you using the current versions of the DOL model notices or a compliant one you’ve created? Are you sharing GINA notice, if needed? Do you know what information you should or shouldn’t be requesting?
  • Reviewing your record-keeping: Ensure your records are in order. FMLA regulations require employers to maintain required records for a minimum of three years. Do you need to update/revise your record-keeping processes?

Lockton’s “Friendly” On- Site Audit

Not sure if your organization is ready for a DOL audit? Lockton’s FMLA compliance experts offer employers a “friendly” on-site audit—a test-run of sorts—where we investigate internal procedures and processes to determine how well your organization complies with the Family and Medical Leave Act. We coach our clients through the audit administrative process, with special attention to organizations with multiple locations, where the state FMLA policy may differ—may be more generous, for example—than the federal FMLA regulations.

Has your organization been the target of FMLA enforcement? Share your experience in the comments section below—we’d love to hear from you.

To learn more about our friendly on-site audit, please contact me at RRuotolo@Lockton.com or call directly at (646) 572-3962.

{ 2 comments }

IRS Releases Draft ACA Employer Reporting Forms

August 7, 2014

Tweet The IRS has released draft forms that insurers and sponsors of self-insured plans can use to demonstrate compliance with the ACA’s individual mandate during their annual federal tax filing. The forms may be used beginning in early 2016 to report on the individuals who had coverage during the 2015 calendar year. The forms will […]

Read the full article →

Four Ways to Boost Workplace Wellness

July 22, 2014

Tweet Dr. Ann Kulze is a physician, best-selling author and motivational speaker committed to sharing the joys of living well with as many people as possible. We’re excited to announce that right now, due to a new exclusive partnership arrangement with Lockton, employers like you can utilize the renowned wellness educator’s specific, easy-to-follow advice to […]

Read the full article →

Latest PPACA Regs: Potentially Good for Employers But Ambiguities Remain

June 25, 2014

Tweet The latest round of legislative guidance from the Patient Protection and Affordable Care Act (PPACA) provided some good news for employers potentially, but challenges and considerable ambiguity remain, especially regarding the employer play or pay mandate. The final regulations provided implementation guidance on three interrelated PPACA provisions; namely, the employer play or pay mandate, […]

Read the full article →

Employers Seek Unbiased Advice for Private Exchange Strategy

May 8, 2014

Tweet Health care inflation and health reform have prompted many employers to examine the viability of private exchange strategies to contain costs, remain compliant, and continue to deliver competitive benefit packages. Many employers looking for unbiased advice have relied on Lockton, the world’s largest privately held insurance broker, to provide objective, unfiltered advice regarding their […]

Read the full article →

Wellness Study: Lifestyle Management Programs May Not Help Bottom Line

April 15, 2014

Tweet A recent study exploring trends in corporate wellness underscores the value of initiatives aimed at reducing chronic illness, but found no net savings at all from lifestyle management programs—those aimed at reducing health risks through initiatives focused on weight loss or stress management.+ The study, conducted by RAND researchers and executives of PepsiCo, praised […]

Read the full article →

Health Reform Penalties & Admin Hassles Top Concerns for Mid-Sized Employers

March 26, 2014

Tweet Mid-sized companies continue to voice concerns about potential penalties and administrative hassles despite recent implementation delays to the Obamacare rules for employers. Smaller companies employing between 50 and 100 full-time workers will now be exempt from the mandate to offer affordable health insurance to employees until 2016, the government announced in February. This followed […]

Read the full article →

Unum Study: Effective Benefits Communication Drives Employee Engagement

March 13, 2014

Tweet A new study from Unum once again confirms the important correlation between effective benefits communication and heightened employee engagement levels. The study, Beyond the Usual Benefits, which builds upon five years of research, offers useful guidance to employers engaged in communications planning for 2014 benefits open enrollment and confirms previous third party research, which […]

Read the full article →

Feds Issue Final Play or Pay Regulations—What You Need To Know

February 24, 2014

Tweet The IRS issued final regulations on health reform’s play or pay mandate, the employer shared responsibility provisions of the Patient Protection and Affordable Care Act (ACA). Lockton’s Health Reform Advisory Practice hosted a webinar in response to the news, providing strategic insights and actionable takeaways for those wrestling with the complexities of the law’s […]

Read the full article →

Study: Future of Employer-Based Health Coverage Unclear

January 16, 2014

Tweet The onset of health care reform has caused many employers to think about the long-term effects of continuing to offer health coverage. Will they offer health coverage in the future and, if so, for how long?  Which workers will continue to receive coverage? Workers Have More Options for Health Coverage Previous findings from Paul […]

Read the full article →