Despite being enacted over 20 years ago, the federal Family and Medical Leave Act (FMLA) continues to trip up even the most experienced human resource professionals. If you have 50 or more employees, use this checklist to review your FMLA practices and ensure you are in compliance.
Review Your FMLA Policy
The FMLA has been updated numerous times over the past few years. Most recently, the Department of Labor (DOL) amended the definition of “spouse” to recognize same sex and common law spouses based on the place of celebration, rather than on the place of residence. (Note: at the time of this writing, enforcement of this amendment is on hold in the states of Texas, Arkansas, Louisiana and Nebraska due to a federal court injunction.) In 2013, the DOL issued new regulations that affected qualifying exigency leave for military-related activities, caregiver leave for service members, minimum increments of leave and other provisions.
If you have not conducted an in-depth review of your FMLA policy in the last two years, you may find that your policy is out-of-date. Check that your policy addresses the following:
- Eligibility requirements
- Spouse definition
- Designation of year for counting purposes
- Leave requests, certifications and designation requirements
- Benefits during leave
- Pay substitutions during leave
- Intermittent leave
- Fitness for duty upon return from leave
- Moonlighting policies/rules
FMLA Practices, Procedures and Recordkeeping
A thorough FMLA policy is great but it does you no good if you fail to implement proper procedures and recordkeeping. Review your practices for the following areas that tend to trip up leave administrators:
- How do you handle requests for leave and certifications?
- Are you properly tracking leave – especially intermittent leave – and communicating with employees regarding leave remaining?
- Are you designating leave as FMLA leave in a timely manner?
- Are fitness for duty certifications being received and kept?
- Are you keeping FMLA records for at least 3 years, including:
- Dates of FMLA leave and requests
- Hours of FMLA leave
- Copies of all notices to and from employee
- Employer policies and benefit information (e.g., employee benefit election)
- Records of disputes
- Denials of leave
- Medical documentation, certifications and fitness for duty
- Where are you keeping these records?
Forms and Posters
The DOL provides sample certification and designation forms for use by employers. The latest FMLA forms have an expiration date of May 31, 2018. The FMLA poster provided by the DOL has a revision date of February 2013. Make certain that your forms are the latest available and that you have complied with your posting requirements by checking:
- Are you using the most updated poster from 2013?
- Is the poster prominently located in a conspicuous place in all locations?
- Is the poster available in all languages spoken by your employees?
- Are you using up-to-date forms with a May 31, 2018 expiration date?
Once again, the best efforts by human resources will not save your organization from liability if your front line supervisors and managers are mucking things up. Be sure to provide in-depth FMLA training to all new managers and supervisors and update everyone on the latest changes. In particular, check on the following:
- Are your managers and supervisors trained on employee rights and your company’s responsibilities under the FMLA?
- Can they explain your FMLA policy?
- Do they understand the FMLA leave procedures?
- Do they understand FMLA’s confidentiality rules?
- Do they understand proper call-in procedures for intermittent leave?
- Are they trained not to retaliate against employees who have requested or used FMLA leave?
Conduct this self-audit to check for any FMLA compliance issues and to make sure your organization is up-to-date with the latest FMLA developments. If you have questions or concerns, be sure to check with your employment counsel.