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 or call directly at (646) 572-3962.


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