The DOL’s latest move has made reviewing your FMLA policy and procedure mandatory, unless you enjoy paying fines. The DOL recently issued a new General FMLA Notice for employers to display in the workplace. They also said that using the new version of the notice (poster) is optional for those who are already using the 2013 version, there was one more little reminder that employers must pay attention to and implement immediately.
DOL Requirements
DOL also released a brand new 76-page guide on how employers should go about administering the FMLA — and that guide delineates the need for employer policies to reflect all the info on the General Notice. The “The Employer’s Guide to The Family and Medical Leave Act ,” outlines the poster and policy mandates on pages 12 and 13.
The FMLA Poster
- Must be prominently displayed by all FMLA-covered employers where it can be easily seen by employees and job applicants even if no employees are FMLA eligible,
- Information provided to each employee must be WRITTEN.
- An employee handbook may be distributed to all employees.
- A written guidance may be distributed to employees explaining benefits / leave rights.
- The DOL’s general notice may be distributed to all new employees upon hire.
- Electronic posting is permitted as long as it meets all the other posting requirements.
If a significant portion of workers are not English-literate, the employer must provide the notice in a language in which those employees are literate. Currently, the 2013 poster is supplied in multiple languages. But, regardless of DOL offerings the employer must comply with the language requirements.
The FMLA Policy
If an employer has any FMLA-eligible employees, it must:
- provide each employee with a written general notice about the FMLA in an employee handbook or other written materials
- distribute the general notice to each new employee upon hire if no handbook or written leave/benefits materials exist,
- make sure that the info provided includes, at a minimum, all of the information contained the DOL’s FMLA General Notice poster
The guide also says employers can comply with the FMLA notice and policy regs by attaching a copy of the new FMLA General Notice poster to their handbook. (Although, this option can be somewhat clumsy.) A well-written policy derived from the poster is really a better option.
The Penalties for Non-compliance
DOL says those who willfully violate the posting requirement may be assessed $110 for each separate offense. That
means PER EMPLOYEE. The fines can add up quickly if you have a large workforce.
Your Next Steps
Make sure your leave policy is not just an oral agreement or only mentioned on your poster board. In other words, you MUST have a written policy regarding FMLA benefits and protections. Take a look at your policy and perform an audit to make sure it contains all of the same info as the new General FMLA Notice. Be sure all employees have had a chance to review the policies and sign a statement of acknowledgement. If you discover some workers have not had this opportunity, provide it immediately.
Check out my recent posting of the guide and poster.
Bottom Line
Failing to provide employees with federal and state mandated rights and benefits is a very risky business. Judges and juries commonly award employees judgments into the millions for this type of non-compliance activity – especially if the lawsuits go “class action”. Don’t leave your company – and possibly yourself individually – open to this level of liability.
Until Next Time, Be Audit-Secure!
Lisa Smith
