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DOL Announces Changes to FMLA Audit Practices

DOL Announces Changes to FMLA Audit Practices

The DOL has recently announced that they will be changing the current FMLA auditing structure. This new format will include more frequent and extensive audits. Organizations will need to stay updated on all policies and refresh them as necessary. Here is what you can expect from the changes and how to remain compliant.


Refresher: What is FMLA?

The Family and Medical Leave Act (FMLA) provides eligible employees with 12 weeks of unpaid, job-protected leave. According to the Department of Labor (DOL), covered employers with at least 50 employees must, by law, provide FMLA. Covered employers include schools, public agencies, public companies, and private companies.

Employees of these covered entities are considered eligible for FMLA under the following conditions:

  • The birth and care of a child 

  • Fostering or adopting children

  • Attending to the health needs of an immediate family member

  • Medical leave due to a severe health condition


What Do the New Audit Changes Mean for Employers?

The DOL announced in February that they would be conducting more frequent FMLA audits. This new policy will primarily affect the warehouse and logistics industries. 

The policy will involve more frequent investigations and more opportunities for onsite auditing practices such as policy reviews and general compliance. 

FMLA audits first ramped up back in 2014 as part of the Obama administration's strategy to take a more aggressive approach toward FMLA audits. The Trump administration later reduced those policies. Now, Biden has said he plans to re-enact stricter laws regarding these auditing practices. 

Following the announcement in February, it seems clear that Biden's plan for stricter audits is likely to happen sooner than later. For this reason, organizations should be proactive in their preparations. 


What Can Employers Do to Stay Compliant?

Many organizations may not even realize their FMLA policies are non-compliant. For this reason, self-auditing will be crucial for employers in 2022 and should be a high priority. 

The best way to conduct a self-audit is to ask yourself important questions about your policies. The answers you give can help you determine how compliant your organization is concerning FMLA. A few questions to ask are:

  • When an employee is absent, what procedures are your managerial staff following? 

  • Are all requests processed correctly and by the correct staff?

  • How are you calculating the amount of leave taken?

  • Are you appointing FMLA leave correctly and offering the proper amount of notice?

  • Are you following the correct compliance process for checking in with employees when on FMLA leave?

Be sure you can answer these and all other compliance-related questions. If any of your answers are lacking, then it is time to re-evaluate the established policy. 

Once you have answered your self-audit questions, you should go through all procedures individually. The DOL will be checking to ensure they are fully compliant with FMLA standards. You will need to update any materials with any changes made following the self-audit. Materials include your handbook and the required FMLA poster.


How Should Employers Establish Updated Policies?

You will want to be sure that your new and updated policies have considered all issues related to FMLA, such as:

  • Redefining eligibility requirements

  • Incorrect identification of leave year parameters

  • Incorrect substitutions of paid leave

  • Unclear notice expectations

  • Outdated military leave guidance

  • Overlook benefit premium guidelines

  • Misrepresenting fitness for duty requirements

  • Omitting the FMLA poster or any included information

  • Lack of state law addendums

  • Unclear job protection policy

  • Absence of FMLA fraud statement 

Once you have ratified any remaining policies, it is time to train your employees. All employees and management need to be fully aware of any changes and what they entail. The DOL has concluded that leadership is often not familiar with the FMLA policies of their organizations, and this poses significant compliance concerns. 

Training managers on FMLA policy and any updates and changes can drastically reduce the chances of non-compliance. As audit practices change, it is more important than ever to ensure management is trained and prepared for all FMLA-related concerns. 


Additional Resources

You can also stay informed, educated, and up-to-date with HR policy changes and other important topics by using BerniePortal’s comprehensive resources:

  • BerniePortal Blog—a one-stop-shop for HR industry news

  • HR Glossary—featuring the most common HR terms, acronyms, and compliance

  • HR Guides—essential pillars, covering an extensive list of comprehensive HR topics

  • BernieU—free online HR courses, approved for SHRM and HRCI recertification credit

  • HR Party of One—our popular YouTube series and podcast, covering emerging HR trends and enduring HR topics 

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