The Ultimate Cheat Sheet on FMLA Compliance

We’re all for that. Happy employees are productive employees. Yet, it is also one of the most complicated and bewildering sets of employment laws for Human Resource professionals to administer. Or, to put it another way, employee leave legislation is a well-intended nightmare.

How did a progressive policy become a minefield of potential lawsuits and fines? In addition to FMLA, related federal regulations such as ADA only add to the confusion. This being an era of state and local assertion of power, many states and large cities have enacted their own family and medical leave laws. Don’t look for relief anytime soon.

Legislation designed to improve the lives of workers never comes with an employers’ user guide. While this is true for most government mandates for employers, FMLA is in a class of its own, as we’ll see below.

But first, let’s applaud HR professionals. They have one of the most challenging and complex jobs in the corporate world. One reason is that people are, well, challenging and complex by nature. Another reason is the maze of laws, regulations, and guidelines designed to protect the interests of employees, potential employees, and even former employees. Most HR professionals on the front line are not attorneys specializing in employment law. For those who are, congratulations. For everyone else: know what you’re up against and plan for the worst-case scenario.

In 2014, the Department of Labor (DOL) appointed a new FMLA enforcement leader. Upon the retirement of Diane Dawson, who led the DOL’s FMLA enforcement for several years, the agency named longtime DOL FMLA policy expert Helen Applewhaite to direct FMLA investigations.

Like any new sheriff, Ms. Applewhaite intends to make her mark. Why should you care? Consider the following Applewhaite-era innovations:

• On-site, ad hoc investigations are the new normal – Be prepared for DOL enforcers to visit your site far more often, not only in response to FMLA violations. Even companies with clean records should expect surprise visits for employee interviews and FMLA record reviews.
• The DOL is focusing on systemic FMLA issues – Much like the EEOC’s broad, multi-year, multi-location information requests, the DOL now seeks extensive data beyond individual complaints. According to Ms. Applewhaite, the agency’s standard request covers a two-year period.
• Employee interviews will become standard practice during on-site visits – DOL investigators want to confirm that all supervisors and personnel involved in leave management understand your FMLA policies. They’ll verify compliance by interviewing multiple employees and having them attest to procedures. Front-line supervisors should be ready to walk investigators through the entire FMLA process—from an employee’s initial leave request to the organization’s documentation and response.

Given the DOL’s expanded enforcement approach, organizations should proactively prepare for an FMLA investigation—even if they believe they are fully compliant. That day may never come, but the risk of being unprepared is too high to ignore.

Accurate FMLA tracking is one of the most effective ways to ensure compliance—and to easily demonstrate that compliance when required. Another key advantage of strong tracking practices is that they serve as a centrifugal force: a great tracking system can only exist when your organization’s broader leave management processes are functioning correctly.

According to a recent FMLA practices survey by ERC, “tracking” ranks as the number one challenge for most participants. Given the complexity of FMLA administration, it’s not surprising that tracking methods vary widely across organizations. Reported approaches include timesheets, Excel spreadsheets, payroll systems, and third-party outsourcing. To add further complexity, companies differ in how they handle paid leave and PTO—some require it to run concurrently with FMLA, while others merely allow it.

The takeaway is clear: get on track and stay on track. Implement a best-in-class system that integrates leave management tracking with time sheet tracking. Most importantly, choose a solution that works in the real world. It should not only comply with both federal and state regulations but also provide the flexibility to handle the one-off exceptions that inevitably occur.

Because as experience shows, those “one-off” situations—if not properly tracked—can quickly escalate into something much larger.

The phrase “May you live in interesting times” is often said to be a translation of a Chinese curse. This isn’t true—most sources trace it to a mistranslation by Joseph Chamberlain, a 19th-century British statesman. Still, the phrase endures because it rings true.

These are indeed interesting times to be an HR professional. The role has evolved dramatically—from the days of the “personnel manager,” often tucked away in accounting, to today, where HR stands as a strategic leader responsible for an organization’s most valuable asset: its people. Many HR professionals now rightfully have a “seat at the table.”

With this growth in influence and impact comes a corresponding rise in legal and fiduciary responsibility. That’s something worth celebrating—the HR function has truly arrived. Yet, with greater responsibility comes greater risk. FMLA affects both sides of the HR equation: significant impact and significant exposure. Developing and implementing a robust, flexible leave policy is one of the most effective ways to reduce that risk while strengthening the organization as a whole.

The core to a robust leave policy is an integrated leave tracking system. DATABASICS Employee Leave Management system is designed to meet the needs of today’s workplace where exceptions are the rule. Key features include flexible accrual methods and rules management, request-for-leave with approval workflow, administrator overrides with full audit trail, comprehensive reporting, and easy transition from existing processes. If we’re going to live in interesting times, it’s good to have a reliable partner.