Are your FMLA leave procedures and policies "adequate"?

A few months ago, the U.S. Department of Labor's Wage and Hour Division (WHD) reached an agreement with one of the country's largest school districts to help improve the employer's compliance with the federal Family and Medical Leave Act (FMLA).

The agreement was the result of what began as an investigation.

Background

In October 2021, the WHD opened an investigation of the employer and found that it did not have proper procedures and forms in place and lacked an adequate written FMLA policy.

Under the FMLA, when employees put employers on notice of the need for potential FMLA-qualifying leave, employers have only five days to give employees an eligibility/rights & responsibilities notice. If employees provide such notice to supervisors, those supervisors need to recognize those requests and act accordingly.

If supervisors don't know how to recognize this, an employee's absence very well could be classified incorrectly. Such was the case for this employer.

The investigation also revealed that the employer had denied two FMLA-protected leave requests improperly by not providing the employees with timely written notices or reasons for denying the protected leave.

Changes made

The WHD helped the employer by providing FMLA training to administrative staff and helped the employer update its FMLA policy to be clearer about:

• How and when employees can take FMLA leave.
• How FMLA-related leave differs from other types of available leave.

The employer was not subject to any fines or penalties because the WHD didn't find violations that resulted in monetary damages. The employer wasn't, however, completely off the hook.

Under the agreement, the employer promised to train its principals and front-line supervisors about FMLA every year and train all new hires. The employer also hired an HR professional dedicated to handling FMLA leave requests.

The employer also made systemic changes to make sure employees understood their FMLA protections and their rights to use leave. The changes included publishing the revised FMLA leave policy in several key places, such as:

• On the employer's intranet for employees,
• In its employee handbook, and
• In other internal communications.

In May 2023, the employer also made a comprehensive FMLA presentation to employer representatives to share with employees.

After the changes, the number of leave requests went from about five per month to 20 to 30 per month. While this increase meant more work for the employer, it showed an improvement in compliance.

Key to remember: The FMLA does not have a list of what is needed to make an FMLA leave procedure or policy "adequate." As this investigation helps illustrate, however, the procedure should not result in improperly classifying leave, and the policy should clarify what FMLA is compared to other leave types. It should also be well communicated.