During the previous presidential administration, the U.S. Department of Labor (DOL) rarely ran compliance audits of the Family and Medical Leave Act (FMLA).

But with a new political reality and COVID-19 slowly fading, the DOL is ramping up FMLA audits — and employers need to be prepared.

Complacency can be expensive: Non-compliance with posting requirements can rack up fines, while the cost to defend against charges for violations can run into the tens of thousands of dollars.

A recent ruling from U.S. Fourth Circuit Court of Appeals shows the importance of keeping policies current and regularly training managers. The ruling concerned a lawsuit over an employee’s termination for FMLA absences.

As required, the employee notified the company of his FMLA absences, but did so through via Facebook Messenger to his supervisor. The court found in favor of the employee, saying that using the messaging app was a common practice that could be considered usual and customary — even though the employer was unaware of the practice and was not had included in its policy handbook.

Prepping for an FMLA audit

Clearly, there’s more to being ready for an FMLA audit than simply prepping for a DOL examination of workplaces and records: Organizations should inspect their compliance on their own, top to bottom, well before the DOL comes calling.

Here are six steps to improve FMLA compliance:

1. Follow the posting requirements. The DOL requires all covered employers to prominently display a poster that summarizes major provisions of FMLA and where and how employees can file a complaint.¹ This poster must be posted at every location, even if there are no eligible employees. For as simple as this step might be, it’s often overlooked or not current.

2. Review FMLA policies. It’s key for employers to evaluate compliance of existing policies and check if they’re still compliant with the FMLA. For instance, what’s an employer’s intermittent leave policy? Is there recertification every six months? What must workers do in order to qualify? How are benefits handled when an employee is on leave and does the policy stipulate if employees are on leave, can they earn income elsewhere?

3. Review FMLA-related forms and correspondence. DOL-provided forms are (obviously) compliant, but not always used., It’s important to provide forms to employees, make sure the forms are completed and ensure the forms are returned on time. Correspondence is how the employer documents the FMLA process, often explaining decisions and the process behind them.

4. Strengthen FMLA education, if needed. Although most workers probably won’t call the DOL if they’re turned down for leave, employees may feel they weren’t treated fairly — which can happen if they don’t know or understand the rules. That makes education imperative for employees, managers, and leadership. They need to understand the organization’s FMLA policy and the process behind leave decisions. The training is best done formally, rather than an annual memo simply reminding people that FMLA exists.

5. Consider an FMLA audit test run. An internal audit on FMLA policies, correspondence and forms is a smart way to be ready for a potential DOL audit. After all, a policy is only good if it’s followed. Review the past 12 to 24 months to ensure policies are in order, forms and correspondence are compliant and processes are clearly stated and supported. A test audit will go a long way toward uncovering deficiencies before the DOL does.

6. Review social media and communications policies. Organizations need to review their communications policies to ensure they reflect controls over what information — if any —is shared on social media. As the FMLA court case showed, there are risks to using social media for internal functions.

Contact HUB International’s experts on the best ways to meet FMLA compliance and how to cope with an audit.

¹ U.S. Department of Labor, Wage and Hour Division, “Family and Medical Leave Act (FMLA) Poster,” accessed April 27, 2022.