Employers:  FMLA Audits Planned by DOL

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Employers:  FMLA Audits Planned by DOL

The Department of Labor (DOL) stated that it would increase Family and Medical Leave Act (“FMLA”) and wage and hour audits of employers.  Of particular attention are employers in the warehouse and logistics industries.  Employers should prepare now, as a FMLA violation often leads to the DOL coming onsite and looking at all policies and procedures.


The employer’s FMLA policy and forms typically are the first line of inquiry in a DOL audit.  So, updating employee handbooks and FMLA policies (and posters) should come as a priority, including:

  •      •FMLA eligibility requirements;
  •      •Definitions in the policies, including the 12-month FMLA leave year;
  •      •Child leave requirements, not just for pregnancy or birth, but also for bonding leave, adoption, and foster care family additions;
  •      •Notice requirements;
  •      •Employee obligations, responsibilities, and prohibitions during the FMLA leave;
  •      •Medical provider confirmations required;
  •      •Alternatives, like paid leave or intermittent leave;
  •      •Benefits that continue during the FMLA leave;
  •      •Requirements for employees to be cleared to return to work; and
  •      •FMLA forms must comply with regulations (e.g. Notice of Eligibility and Rights and Responsibilities, Certification, and Designation Notice forms – new forms were issued by the DOL[1]).



As the DOL inquiry will include a review whether FMLA correspondence with employees is compliant, self-audit should include correspondence re:

  •     •Certification Requests and Certification;
  •     •Recertification;
  •     •Notice of Failure to provide Certification;
  •     •Notice of Insufficient/Incomplete Certification;
  •     •Employee return to work Notice;
  •     •Alternative Second Opinion Demand;


Training self-audit should also include:

  •     •Manager training on employee return to work and certifications required;
  •     •Manager training on procedure when employee absence may implicate FMLA and what to do and ask the employee;
  •     •Calculation of hours for intermittent leave;
  •     •Manager training on timely and compliant medical certification, inquiries and second opinions;
  •     •Manager training on notice to employee of FMLA designation by employer; and
  •     •Manager training on employee communication during FMLA leave.



Employers should have at their fingertips at least three years of FMLA documentation:

  •     •Employees who took FMLA leave;
  •     •Payroll data;
  •     •Date(s) of leaves;
  •     •FMLA incremental time taken;
  •     •FMLA notices;
  •     •Certification forms;
  •     •Benefit documents; and
  •     •Disputes about designation of FMLA leave and how it was resolved.

Not being compliant or Managers doing or saying something out of line has resulted in big liabilities for employers.  Self-auditing and training can fend off the problems.  If you have any questions regarding the development or other employment related requirements – or if you get an audit letter, please contact Dawn at: dcoulson@eppscoulson.com

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is considered advertising under laws of some states.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

Attorneys admitted to practice in California, New York, Colorado, Texas, and Oregon


[1] https://www.dol.gov/agencies/whd/fmla/forms