Until now, the Department of labor’s (DOL) on-site presence has been virtually non-existent, which in some cases may have led to complacency in your FMLA administration. I recently had the opportunity to see Helen Applewhaite, the DOL branch chief for FMLA, speak at the FMLA/ADA Employer Compliance conference hosted by DMEC in Washington DC.During her presentation, Helen emphasized the need for employers to be prepared for DOL on-site investigations.
The DOL insists these visits make sense for them, as future visits will become less time-consuming and hence, less costly for them. Investigators will have access to records, data, FMLA policies and forms. While in the workplace, investigators can also conduct face-to-face interviews with employees and staff while reviewing documentation. Albeit slightly overdue, I think this is great news for employees and employers alike.
On-site visits can occur at anytime for all employers, although the DOL national office has advised its regional offices to conduct on-site visits when it would “make sense”. These visits could be sparked by a recent complaint filed against your company by a terminated employee, or perhaps it’s just your turn.I do hope that knowing this has sparked some bit of emotion within your leave administration department, whether it be concern with or full confidence in your compliance. If it’s indifference you’re feeling, I’m hoping you’ll take a good look at your FMLA processes! To prepare for this eventuality, I suggest completing a thorough audit yourself. Here are 6 of the most important things you can do to prepare for it, if (or when) the DOL comes knocking:
1. Review your Absence and FMLA Policies
- Review all of your FMLA documentation and company attendance policies as an outsider would. All documentation should be easily understood and communicated with all employees.
- Review your call out procedures with your employees and management staff. Ensure everyone is clearly aware of whom should be called, and how quickly, when an FMLA event occurs.
- Interview your supervisors and/or managers who may be responsible for approving FMLA requests. How do they deal with absence requests? Do they take the extra step to confirm if it’s potentially FMLA qualified? Do they do so consistently? Supervisors and managers across your organization should treat all employees equally.
2. Review your Eligibility Determination Process:
- When the employee has notified the supervisor of an absence according to the call-out procedure, the appropriate process needs to be in place to let the informed party make an accurate and timely eligibility determination.
- Once it’s been determined that the absence is FMLA qualifying, what are you supervisors communicating? How are they getting that information, and how fast? Consolidated data allows the administrator access to the full details concerning the employee’s employment history that will include length of service and hours worked. Sometimes manual processes can hinder this process. According to SHRM, 52% of employers admitted that they have approved FMLA time that was unfounded for fear of litigation. Some Absence Management software can assist with this process, and some will do it for you.
3. Review your Certification Process:
- The certification process combines the DOL regulations alongside your company specific business practices that you reviewed in step one. These rules need to be documented and consistent across all worksites.
- Discuss the certification process with those responsible for making FMLA decisions. Do they all adhere to the same process? Do all employees get the same amount of time to return a certification? What happens when an employee asks for more time to return it, or the certification is returned incomplete? Do all employees get the same opportunities to rectify the situation?
4. Review your Determination Process:
- Ensure all leave administrators fully understand what constitutes a serious health condition, as defined by the DOL. As noted above, many FMLA claims are inappropriately approved. Are you confident that you aren’t denying claims inappropriately?
- Document approval process. Remember that not all are clear cut. What if you didn’t receive an end date on the certification? Don’t forget those tricky “as medically necessary” statements from physicians.
- Document the process regarding overturning denials. Do you allow it? If so when and why? Again, this will ensure all employees are treated equally.
5. Review your Absence Management:
- Make sure that your employees are adhering to the frequency and duration of approval. If they aren’t, and you’re covering some of those non-approved dates, why are you? And are you doing it for everyone?
- Is your recertification process clearly documented and adhered to across all sites?
6. Review disciplinary policy up to and including termination
- Do you provide attendance points? When and how?
- Do you have date and time stamped documentation of why you made a decision to reprimand an employee for absence related events?
- If you utilize the “honest suspicion” rule (and I hope you do), your documentation must be bullet proof. Check it, teach it, and learn it.
Following these steps will truly assist your company with compliance issues but it may also help you identify weak spots that need to be addressed. Good luck, and don’t forget – document, document, document!
If you would like more information on common mistakes employers make while managing FMLA and how to best avoid them take a look at this infographic.