New Guidance on AI and FMLA Compliance

The U.S. Department of Labor's Wage and Hour Division (WHD) has recently released a Field Assistance Bulletin (FAB) addressing the implications of using artificial intelligence (AI) and automated systems in managing Family and Medical Leave Act (FMLA) responsibilities. This bulletin highlights the potential risks these technologies pose to FMLA compliance, stressing the importance of human oversight in their deployment.

AI and FMLA Administration: Key Concerns

With the increasing integration of AI in the workplace, particularly for managing time-off requests and absence calendars, the WHD has pinpointed several areas where FMLA compliance might be jeopardized:

• Processing of Leave Requests: AI systems might miscalculate actual time worked, leading to incorrect eligibility determinations.
• Improper Certification Requirements: Automated systems might request more information than is legally permissible, violating FMLA rules.
• FMLA Interference and Retaliation: Using AI to track leave could discourage or penalize employees for taking FMLA leave.

Understanding Field Assistance Bulletins (FABs)

FABs serve as guidance tools for WHD investigators and staff, clarifying enforcement positions and policy changes. While they don't create legal obligations, FABs offer valuable compliance insights for employers, helping them navigate complex FMLA requirements.

Practical Tips for Employers

To avoid potential pitfalls, the WHD advises employers to closely monitor AI and automated systems in key areas, including:

• Eligibility Determination: Ensure AI correctly calculates the hours worked for FMLA eligibility.
• Medical Certifications: Verify that automated systems adhere to FMLA rules regarding the timing and content of certification requests.

Steps to Ensure Compliance

Given that employers are ultimately responsible for FMLA compliance, the WHD recommends the following actions:

• Human Oversight: Regularly review AI and automated system outputs to ensure they meet FMLA standards.
• Training: Educate staff on FMLA rules and the potential risks of automated systems.
• Audits: Conduct periodic audits of AI processes to identify and correct compliance issues.

Overview of FMLA Requirements

The FMLA mandates that eligible employees of covered employers are entitled to up to 12 weeks of unpaid, job-protected leave for specific family and medical reasons. Eligibility criteria include working for the employer for at least 12 months and completing at least 1,250 hours during the previous year.

Employers may request medical certification to support FMLA leave but must adhere to strict guidelines about the requested information and the timeframe for curing incomplete certifications. Additionally, employers cannot retest once eligibility is determined until a new 12-month period begins or if the leave request is for a different reason.

Processing Leave Requests with AI

The FAB cautions that relying on AI for processing FMLA leave requests can lead to non-compliance. Automated systems often use historical data to predict and populate time entries, which can result in inaccurate calculations of hours worked and incorrect leave eligibility determinations. Furthermore, AI might miscount the days against an employee’s leave entitlement or test for eligibility more frequently than allowed, leading to improper leave denials.

Certification Requirements and AI

AI systems may also falter in handling FMLA medical certifications. The law specifies the permissible content and timing for certification requests. Automated systems might overreach by requesting additional information or fail to allow the required time for employees to complete certifications.

Preventing FMLA Interference and Retaliation

The FAB warns against using AI to monitor or analyze leave in a way that discourages employees from taking FMLA leave or retaliates against those who do. Such practices are clear violations of FMLA regulations.

Conclusion

While AI and automated systems offer efficiencies, they pose significant risks to FMLA compliance. Employers must ensure these technologies are used responsibly, with robust human oversight to prevent violations. By understanding and addressing the specific concerns outlined by the WHD, employers can better navigate the complexities of FMLA administration and protect their workforce's rights.

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