FMLA LEAVES – Get Your Files In Order for DOL Audits

Epps & Coulson Logo

FMLA LEAVES – Get Your Files In Order for DOL Audits

We last gave you some Dos and Don’ts regarding leaves.  Now, we update that the Department of Labor (“DOL”) is increasing Family and Medical Leave Act (“FMLA”) audits and investigations, so employers are well advised to get FMLA policies and practices tuned up.  Here are more Dos:

  •      •Ensure the employer’s employee handbook, FMLA policy and forms are up-to-date and clearly notify of eligibility requirements and how to seek a FMLA leave. Many employers do not educate employees about (or know) that FMLA leave can be intermittent.
  •      •Have a specified company person designated to work with the employees who seek or are on leaves, including tracking FMLA leaves, working with requirements for each type of leave basis, conferring with employees about the employee’s duties to check in and/or provide additional medical certification, answer questions about other employee benefits and prohibitions while on FMLA leave, and back to work certifications required.
  •      •Check that if a FMLA leave is denied, whether some other leave might apply to the employee’s situation.
  •      •Update the FMLA poster and ensure it is posted where employee gather (e.g., lunchroom or punch clock area) and is in English, as well as any other language the employees speak as a first language.
  •      •Confirm that you are using updated DOL forms[1]:
    •            •Notice Forms
      •                  •General Notice/FMLA poster
      •                  •Eligibility Notice
      •                  •Rights and Responsibilities Notice
      •                  •Designation Notice
    •            •Certification Forms (these are optional, but useful)
      •                  •Certification of Employee’s serious health condition
      •                  •Certification of family member’s serious health condition
      •                  •Certification of Military Family Leave
    •      •Update correspondence to employees regarding certification, recertification, failures in certification, incomplete certification, return to work and second opinion requests.
    •      •Provide education to company managers who deal with FMLA leaves to ensure procedures, confidences, calculations of eligibility and use of the leave, certifications and other processes and procedures are followed.
    •      •Maintain for at least 3 years information in a separate file for a DOL audit, and make sure that it is up-to-date and accurate, including, for instance, employee identifying information, payroll, date(s) of FMLA leaves, FMLA hours/days/weeks of leave, FMLA notices given and received, certifications, benefit documents, disputes about designation of FMLA leave, and other exchanges.


If you have Employment questions or want to know more about our General Counsel program, please contact Dawn at:

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 likely considered advertising.  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