In 2022, employers should prioritize Family Medical Leave Act (FMLA) compliance and FMLA training. The Department of Labor (DOL) is already taking a more aggressive stance, conducting significantly more audits on FMLA compliance. The DOL has also shared press releases on its official website stating its plans to undertake more audits for FMLA and wage and hour violations. To help employers avoid the steep fines and penalties a DOL audit brings, MP’s HR services team shares the top FMLA compliance mistakes.
Top Four FMLA Compliance Mistakes
1. Not developing a strong, compliant FMLA policy.
The foundation for FMLA compliance (and FMLA compliance training) is a comprehensive, updated policy in the employee handbook. Employers should note that many states have their own FMLA legislation. As a result, their policy should not only be compliant with the federal FMLA requirements, but also reflect the state-specific policies for every state where employees work. A comprehensive FMLA policy includes:
- Eligibility requirements
- Types of leaves available under the FMLA
- A definition of the 12 months considered as the organization’s FMLA year
- An outline of bonding leave requirements related to adoption or foster care
- A guide to family medical leave act notification and request procedures
- An outline of call-in procedures for taking leave
- Employee obligations for the FMLA process
- Employee benefits and rights during leave
- Fitness-for-duty requirements
- Outside work prohibitions for leave
- The medical certification process
If employers are developing this process after sharing their employee handbook, they should ensure employees see the policy and, ideally, sign an acknowledgment page. It’s critical to share policies in a manner that all employees will be able to access. Posting them on an intranet nobody uses or just emailing them once isn’t enough.
2. Sharing sensitive information with others.
Often, employees take FMLA leave due to a medical condition. The FMLA requires employers to treat requests as confidential medical records, and not disclose any information with other employees or managers. Covered employers must create, keep, and maintain any records relating to employees’ leave. These records should be stored in protected, separate files (not in the personal file. To protect covered employers, FMLA records should be stored and maintained per FMLA recordkeeping requirements. These requirements originate from three pieces of legislation:
- The ADA, which requires employers to maintain medical records in compliance with its confidentiality requirements. Medical records could include information about: health insurance enrollment and continuation forms, COBRA notices, employee medical exams, disability benefits claim forms, notes from doctors, requests for Family and Medical Leave Act (FMLA) leave, requests for ADA accommodations, worker’s compensation history, claims and related documents, fitness-for-duty results, functional capacity assessments, referrals concerning an employee’s participation in the company’s employee assistance program, results of drug/alcohol tests, reimbursement requests for medical expenses, health-related information about an employee’s family members, and any documentation about past or present health, medical condition, or disabilities.
- The Genetic Information Nondiscrimination Act (GINA), which protects employees’ medical information
- FMLA regulation section 825.500(g)
In addition to legal requirements, employers should also consider the impact this mistake would have on employee engagement and retention. Employees will have a hard time trusting a manager who shares confidential information about other employees. This behavior may also set the tone for gossip and other toxic behaviors in the workplace. It’s also important to note that research shows one of the most common reasons employees leave jobs is because they don’t like or trust their managers. Sharing confidential FMLA-related information could significantly cost companies in terms of their employee retention, compliance, and legal action. Notably, employers should also ensure the site is secure where they keep any sensitive employee records, especially FMLA and medical records.
3. Mishandling employee FMLA requests.
Firstly, employers must document and accept leave requests to protect themselves legally, especially if an employee is eventually terminated and claims retaliation. Organizations should develop, share, and enforce a policy for requesting FMLA leave. A best practice is to require employees to contact their supervisor or manager to report their absence and communicate the reason for it. (Employers should outline potential qualifying events in their FMLA policy.) Employers should define the time period when their employees should contact their supervisor or manager. If the employer has the resources, it provides extra legal protection if employees are also required to call a third-party administrator. This administrator should handle and document FMLA requests. If employees are unable to make the phone call, they should be required to explain why.
Secondly, employers must respond calmly and professionally to requests for FMLA leave. They must never mock the employee, punish them, or terminate them for requesting medical leave. These violations will leave the employer open to serious legal liability. These violations will also profoundly impact the company culture, ensuring employee engagement, retention, and hiring are all affected negatively.
3. Harassing employees when they’re taking FMLA leave.
It’s vital for employers to note that an employee on FMLA leave must be fully relieved of their job duties. Organizations with employees on FMLA leave should never ask them to complete any work. A manager may reach out with a question or two, but even this is far from ideal and could increase risk and exposure. If employers are given notice before an employee takes FMLA leave, it’s essential to develop a document with resources, procedures, and anything else needed while they’re out. Logins should be encrypted and transmitted securely to managers or covering employees. (This is for cybersecurity reasons.) It’s also a best practice to set aside time for the employee taking leave to train any coworkers or managers who will be covering.
4. Mishandling an employee’s return.
Employers must review and train their managers in FMLA requirements for every state where their employees work. FMLA laws protect employees from immediate termination upon return. They also protect a returning employee’s right to the same position (or a position of equivalent status), pay, benefits, and any other employment terms they originally had before the leave. Additionally, these laws protect employees from retaliation for taking FMLA leave. Though retaliation could be subtle, employees may perceive a schedule change, work duties or location, etc., as a manifestation of retaliation. Another consideration employers and managers should be aware of is the ADA. Sometimes, a returning employee may need reasonable accommodations to return to work. Employers should work with the employee to return them to their job, not seek opportunities to terminate them.
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