Conducting a self-audit (also known as an internal audit) is a key task for human resources (HR) professionals. It’s a great way to help to ensure that the organization remains legally compliant, and it can help to avoid or at least reduce penalties when external auditors pay the company a visit.
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Family and Medical Leave Act (FMLA) compliance is one of many areas where an organization may want to conduct a self-audit to ensure the entire organization is acting in a way that is consistent and in compliance with the law. By conducting an internal FMLA audit, you’ll be able to uncover potential problems and create solutions for them so they do not become systemic. (If you face an FMLA audit by the Department of Labor (DOL), it will be most interested in problems that are systemic and will broaden its search, if warranted, to find such problems.)
Here are a few things to look for in your FMLA self-audit:
- Is your FMLA policy written in a way that is consistent with the law? This may seem obvious, but, in fact, some employers end up inadvertently creating a leave policy that either provides more benefits than they’re legally obligated to provide or is ambiguous in some capacity where the law is not. While there’s no legal reason your organization cannot opt to be more generous than the FMLA requires, it can create inconsistencies in the administration of the policy. So, as a starting point, evaluate how your leave policy is written to ensure there are not ambiguities or ways where it unintentionally differs from the legal FMLA requirements.
- Are your processes consistent? Look at each step of the FMLA process, and see whether it is being implemented consistently. Consider utilizing statistical data to assist. For example, do you know what percentage of FMLA leave requests are approved overall? Does this number vary by department or manager? Does it vary depending on any demographic characteristic of the employee? If you know answers to questions like these, they will help you find red flags to watch out for.
Beyond analyzing data points, it helps to simply review the processes used throughout the company when administering FMLA leave. For example, do all of your managers know how to recognize when a leave request might actually be FMLA-eligible? (The employee does not have to specify that his or her request for time off is for an FMLA-qualifying purpose for it to be the case.) Do your managers know how to proceed when they receive a leave request that might be FMLA-eligible? Do they do so consistently? Continue this line of questioning for other aspects of the process, find the inconsistencies, and address them.
- Have you posted all required FMLA notices prominently?
- Are your FMLA forms the most current version? Check your forms and all FMLA-related communications. Do you use consistent forms or letters when communicating with employees about FMLA leave? Have these documents been confirmed to be legally compliant with FMLA standards?
- How often does the organization provide refresher training for those involved in the leave process? Given that managers are often the first point of contact with any employee who needs time away from work, it’s critical that they understand the FMLA regulations—even if they’re not the ones ultimately tracking and administering FMLA leave.
- Does your organization track intermittent leave consistently? Are all employees who take intermittent leave tracked the same way? For example, does one manager count intermittent FMLA leave in hourly increments, while another counts it in 15-minute increments? This is just one way that it could be administered inconsistently, which may appear to be discriminatory if not caught and corrected.
- Do those involved understand and consistently apply the rules around medical certifications? Consistency and compliance are key here, for both original medical certifications and recertifications. For example, if you require any employee to recertify the need for leave as soon as you’re allowed to do so, be sure to do so for every similarly situated employee. And be sure that recertifications are only requested at the frequency permitted. The same goes for fitness-for-duty tests upon return; they’re allowed, but use them in a consistent manner.
- Is everyone involved and providing required notices and designations in a timely manner?
- Are you keeping all documentation related to FMLA administration for the legally required amount of time (3 years)? Are these files maintained separately from the rest of the employee’s personnel file? They should be separate because they contain medical information, which is protected.
- Have you ensured managers and anyone else involved in employment decisions knows that it’s illegal to retaliate against an employee for taking FMLA leave? Are managers aware that this includes taking actions like skipping someone for a promotion out of fear that he or she may take additional FMLA leave? Be sure your team is on the same page.
This type of self-audit is clearly an involved process, as it will usually require in-depth conversations to understand the processes utilized by those involved with administering FMLA leave. Even if there are just a couple people who administer and track leave in your organization, there are usually many of front-line managers involved in the process leading up to that point, so it pays to be thorough to uncover inconsistencies before they become more problematic.