Employers likely need few reminders about the importance of Family and Medical Leave Act compliance, though that has not stopped federal regulators from telegraphing their enforcement plans in recent months.

As with other areas of compliance, employers continue to face litigation around the FMLA, often incurring costly settlements and associated legal fees.

Last week, a live web Q&A session presented by the Disability Management Employer Coalition covered areas including FMLA audits, concurrent leaves and delayed worker certifications. Paul Kramer, head of compliance at vendor WorkForce Software, walked employers through a set of considerations for FMLA compliance.

#1: Be proactive about DOL audits — and do your own

FMLA audits can translate into a lengthy process, but things tend to move quickly once the U.S. Department of Labor notifies an employer that an audit will take place, Kramer said. Among other items, the agency may seek to examine company and employee records; interview management and employees; and conduct on-site visits and inspections.

Attorneys who previously spoke to HR Dive said employers should prepare by gathering necessary materials, composing a position statement and designating a point of contact for the audit. Kramer similarly advised employers to:

• Review their FMLA correspondence and policies.
• Ensure leaves have been properly tracked and calculated.
• Analyze their FMLA certifications and practices for fairness and consistency.
• Review any steps taken to curb leave abuse.
• Ensure employees have been given proper notice of their leave rights.
• Check that company records are complete and accurate.

Kramer also recommended that employers perform their own audits annually. He noted that FMLA records must be maintained for at least three years.

#2: Be aware of when leaves may run concurrently

Employers may have situations in which FMLA leave runs concurrently with other leave. Kramer said determining whether an employee qualifies for different leave can be a key challenge.

“I think a big problem with leaves that run concurrently is that you have to make sure the employee actually qualifies for each concurrently run leave,” Kramer said. “Different leave laws have different qualification requirements employees must meet to be eligible for the leave and you must make sure the employee meets them before approving the leave.”

Asked by an audience member who worked for a public-sector organization about tracking family and medical leave that may interact with workers’ compensation cases, Kramer said that an employee’s workers’ compensation absence due to an on-the-job injury also may qualify as a serious health condition for FMLA purposes. “If it does, the workers’ compensation absence and FMLA leave may run concurrently,” he added.

#3: Be careful when denying leave over delayed certifications

Under certain circumstances, the FMLA permits employers to require that eligible employees submit a certification from a healthcare provider to support the employee’s need for FMLA leave.

Generally, an employee must provide the certification within 15 calendar days of the employer’s request, but Kramer said he would advise employers to grant “a little extra time” to employees if needed. By doing so, the employer may be able to use the granting of extra time as evidence that it did not retaliate against the employee in the event the employer is sued.

“You have to be cautious about denying FMLA leave because a certification is a little late,” Kramer said. “When an employee makes diligent good faith efforts to provide the certification timely but is unable to meet the 15-day calendar deadline, the employee is entitled to additional time to return the requested certification. Do you want to risk the DOL or a court concluding that the employee made diligent good faith efforts to provide the certification timely and that you wrongly denied the leave?”

Kramer also said employers may want to require employees to put leave requests in writing; “There is evidence to suggest that when you require leave requests in writing it reduces dishonest behavior. Think about it. If someone asks you to put something in writing, aren't you always more careful to be accurate?”