Here Are Steps Employers Can Take to Ensure FMLA Compliance

May 4, 2022

The DOL Is Set to Ramp Up Audits

By Alexander J. Cerbo, Esq.

 

The Department of Labor (DOL) has announced it intends to increase Family and Medical Leave Act (FMLA) audits on employers. Businesses across many industries continue to face scrutiny by the DOL on their FMLA procedures due to an increase in FMLA violations.


Prepare yourself now and give your FMLA procedures a spring cleaning. The following steps are a great way to stay prepared:


Review your FMLA policy. It needs to include eligibility requirements (i.e., the reason for FMLA leave), call-in procedures, an explanation of benefit rights during leave, and much more.


In addition to providing your FMLA policy in your handbook, post it prominently where it can be viewed by your employees and applicants. Keep in mind that if a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language as well.


Review your FMLA forms. Examine all existing forms to ensure they comply with FMLA regulations. The DOL loves to examine FMLA forms during an audit. You will also want to review legally compliant correspondence that may apply to FMLA leave.


Review your FMLA practices and procedures. When doing so, ask yourself: What procedures are used by my managers when an employee reports an absence that may be covered by the FMLA? Do our procedures ensure that all requests for leave,regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or HR? Do we have procedures in place for contacting employees while they are on FMLA leave? All these questions and others are important to keep in mind.


Also, be sure to maintain all employee data the DOL will want to see. Keep in mind the DOL tends to conduct broad record requests, so you will want to make sure your recordkeeping is consistent with all regulations and requirements. And remember: all FMLA-related documentation, such as above, must be kept for a minimum of three years and be kept separate from an employee’s personnel file.

Train, train, and train! Train your employees on all things FMLA! For most companies, managers are the first line of contact. If they are not comfortable with proper FMLA leave procedures now, this may create issues later on. You will greatly reduce the risk of a potential FMLA violation in the future by training now.


FMLA audits are not cut and dry and need to be taken seriously to avoid any potential violations. Lastly, do your managers understand how FMLA, PFMLA, and ADA intersect? They should.

Taking the proper steps now can help make a DOL audit go more smoothly.


Alexander J. Cerbo, Esq. is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; acerbo@theroyallawfirm.com

Good Faith Engagement with ADA Accommodations Makes all the Difference

June 19, 2025
Dooley v. Nevada Gold Mines, LLC Leroy Dooley appealed the United States District Court for the District of Nevada decision to grant Summary Judgment in favor of the Defendants. Dooley alleged in his original suit that Nevada Gold Mines, LLC “NGM” violated The Americans with Disabilities Act (ADA) under failure to accommodate when they made the decision to terminate his employment after his medical leave ended. Before having to go on medical leave, Dooley worked as a Process Maintenance Tech 6. The Tech 6 role is physically demanding. An essential function of the Tech 6 role included repairing ore-processing equipment, a task that required lifting and carrying up to sixty pounds, frequently twisting, and occasionally stooping, kneeling, and crawling. Dooley’s return to work form provided by his doctor indicated he could not lift more than ten pounds, carry more than fifteen pounds, bend, squat, or twist. The United States Court of Appeals, Ninth Circuit affirmed the lower court’s decision to grant Summary Judgement in favor of the Defendants. Restructuring His Position Dooley asserts that NGM could have restructured his position and reassigned repairing ore-processing equipment to other technicians. The court concedes that role restructuring is generally a reasonable accommodation however, an employer is not required “to exempt an employee from performing essential functions or to reallocate essential functions to other employees.” Dark, 451 F.3d at 1089. Dooley also alleged that NGM could have reduced his hours as part of an accommodation while NGM continued to assert that even working part time Dooley would need to repair ore-processing equipment, an action he was still not cleared to do by his doctor even on a part time basis. Request for Assistive Equipment Dooley argued that NGM should have allowed him to use existing workplace equipment like cranes, forklifts, and dollies as assistive equipment to perform his role. Providing such equipment could typically be an accommodation but Dooley provided no evidence that he could operate the referenced equipment with his medical restrictions. Reassignment Dooley alleges that he was denied reassignment as a reasonable accommodation because he was denied reassignment to an open lab position in April 2018. However, Dooley was only cleared to work in December 2018 when the position was no longer open. NGM had other roles open at that time, and it is an undisputed fact that Dooley turned reassignment to those positions down. Per Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) “there is no duty to create a new position for the disabled employee." Dooley had turned down the positions that would have qualified as a reasonable accommodation, there was no expectation for NGM to create additional roles to accommodate Dooley. Request for Additional Leave It is undisputed that NGM provided Dooley with paid disability leave for over a year, including two extensions. Because of the length of the accommodation, Dooley was required to show that additional leave would have allowed him to heal and “plausibly have enabled [him] adequately to perform [his] job. Humphrey, 239 F.3d at 1136. Dooley could not provide such documentation because his doctor indicated that the restrictions were permanent. Dooley does not allege that more leave would have healed him but that it would have provided more time for him to “bid on positions that would come open.” However, Dooley failed to present any evidence that such positions opened within a reasonable time after his termination that he would have been able to perform. Take Aways NGM was able to provide documentation that they fully engaged with Dooley’s requests in good faith and that the process was hindered by Dooley’s lack of engagement and documentation. Awareness of ADA obligations and processes is the best pre-emptive protection against a claim of discrimination. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

The Royal Law Firm Attorneys Receive Finding of No Reasonable Cause at CHRO.

June 18, 2025
Royal attorneys successfully obtained a dismissal at the Connecticut Commission on Human Rights and Opportunities. The Complainant alleged discrimination based on race, color and sex. Royal attorneys argued that the Complainant was not subjected to any adverse employment action and thus could not establish a prima facie cause of discrimination. Royal attorneys also argued that Complainant’s allegations of a hostile work environment and harassment fell short. The Complainant was performing her jobs duties in such a way that it was putting the employer at risk. Complainant’s direct supervisor devised a plan to mitigate the risk the employer was facing and help Complainant improve the quality of her work going forward. It was not disciplinary action, and Complainant was considered an employee in good standing at the time she filled her allegations of discrimination. CHRO agreed that there was insufficient proof to sustain a discrimination or hostile work environment claim and that “if anything, it revealed a disagreement in management styles that does not amount to discrimination and/or harassment under Connecticut law,” and dismissed the case against our client.