FMLA: Department of Labor, Regulations and Investigations
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If a worker in the US needs time away from their job, they may do so under the Family and Medical Leave Act (FMLA).
Signed into law in 1993 and expanded in 2009, the FMLA allows workers to take up to 12 weeks of job-protected, unpaid time off in the event of a serious personal or family medial situation, including the birth or adoption of a child. The law also provides up to 26 weeks of job-protected, unpaid time off to care for a family member who is also a military service member critically injured in the line of duty.
Upon returning from FMLA leave, the worker must be given their job or an equivalent job back – along with the same benefits and working conditions they would have had if they never took off.
Department of Labor FMLA Regulations - Employer Responsibilities
Department of Labor FMLA regulations mandates that all private businesses are employing at least 50 workers, who all live within 75 miles of the home office, are included under the law.
Qualifying employers must post a general notice, which must be put up in a high-traffic area location, such as a break room. The notice can be posted electronically, provided that it's readily accessible to workers and job candidates. This general notice also needs to be provided to workers, either within the worker handbook, other written materials or included in the paperwork given to each new hire.
Organizations must also supply an eligibility notice to workers who ask for FMLA leave. The notice must reveal if the worker is entitled to leave under the FMLA. If the worker is not qualified, the company must lay out at least one of the factor for why the employee is not eligible. This notice of acceptance or denial must be supplied within five working days after the worker's request.
Companies falling under the FMLA must also lay out policies on the various aspects of FMLA leave, including if the company will need a medical validation and/or fitness-for-duty validation, payment of insurance premiums, using paid leave, and any other relevant information.
Finally, organizations must offer their employees a notice that either designates time off work as FMLA leave or notifies the worker that time off will not be allocated as FMLA leave. For FMLA leave, the notice must show the amount of leave counted toward the worker's 12-week entitlement if the length of leave is known at that time. If the length of leave is not known, the worker can ask for a written statement of how much leave has been counted toward his or her entitlement no more frequently than every 30 days.
Department of Labor FMLA Regulations - Employee Requirements
For their part, workers must provide notice of their need to take FMLA leave. While workers need not refer expressly to the FMLA or their legal right to unpaid leave, they must offer adequate medical evidence that the FMLA may apply. Workers must give notice a minimum of 30 days in advance if possible or be able to explain why 30 days' notice was not possible.
An Increase in US Department of Labor-FMLA Investigations
American workers rely on the FMLA during a medical situation, and the US DOL FMLA compliance investigations are about to be stepped up, according to a statement released by the government agency in July.
DOL FMLA investigators are expected to conduct a thorough review of essential documents, leave requests, and interviews in the event of an FMLA-related audit.
In the interest of complying with DOL FMLA regulations, employers should make sure they keep basic payroll data and worker information, including payments given to the worker and the method that it was given. Organizations should also keep a record of dates when FMLA leave was used by FMLA-eligible workers, and any hours of FMLA leave used by qualified workers if in amounts of under one full day.
Employers should also make copies of all notices provided by the company to workers. Records of any differences between the company and an eligible worker related to FMLA leave should also be stored in a secure place. These documents can include any written declarations from the company or the worker on the reasons behind the FMLA designation and related communications.
Organizations also need to keep any records clearly displaying that an employee worked less than 1,250 hours in a 12-month period, and this was the reason FMLA leave was refused. Also, any FMLA-related healthcare records and documents regarding relevant medical certifications or medical histories should be kept securely.
How an Inspection Unfolds
Department of Labor-FMLA inspectors normally gives upfront notice of an inspection. However, the DOL has the power to carry out unannounced company visits. Consequently, a company should have a process in place to handle such situations, including having a specified person who is ready to deal with a surprise investigation.
At the outset, the DOL-FMLA investigator may ask for a conference where he or she will describe how the investigation will move forward. It is very critical to this phase to figure out the range of the investigation, such as the laws that might be suggested as a factor and what categories of workers will be included.
If the investigation is the reaction to a worker complaint, as it often is, the investigator can investigate records that will permit him or her to find out if the worker meets FMLA's eligibility rules. The investigator will also want to meet with workers concerning the employer's FMLA practices. Meetings are commonly done on the employer's premises.
When the US Department of Labor-FMLA investigation is finished, the investigator will tell the company if they have discovered any violations and also recommend how to fix them, including any financial penalties.
It is crucial that a company not only properly prepare ahead of time for a Department of Labor-FMLA investigation, but also correctly respond throughout the on-site visit.