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DOL Issues Warnings About the Use of AI in FMLA Administration

by | May 24, 2024 |

The Department of Labor (“DOL”) has issued Field Assistance Bulletin (“FAB”) 2024-1 which contains guidance and warnings on the use of artificial intelligence (“AI”) when administrating various employment laws, including the Family and Medical Leave Act (“FMLA”), stating that “without responsible human oversight, the use of such technologies may pose potential compliance challenges with respect to federal labor standards,” including the administration of the FMLA.

Background.  The DOL defines AI as “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.  Artificial intelligence systems use machine and human-based inputs to – (A) perceive real and virtual environments; (B) abstract such perceptions into models through analysis in an automated manner; and (C) use model inference to formulate options for information or action.”

The FMLA entitles eligible employees to take up to 12 weeks’ unpaid leave: (A) for one’ s own serious health condition; (B) to care for a seriously ill or injured spouse or dependent; (C) for the birth, adoption or placement of a child; or (D) to deal with “exigencies”  related to their spouse’s military deployment.  It also provides employees with up to 26 weeks’ unpaid leave to care for a spouse who has a military service-related illness or injury.  Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA rights.

FAB 2024-1.  In the FAB, DOL notes that, “The use of AI by an employer to administer FMLA leave can create potential risks of violating the FMLA’s certification requirements for determining whether leave is FMLA-qualifying.”  For example, an automated system that propagates rules for FMLA leave certification and results in an employee being asked to disclose more medical information to an employer than the FMLA allows would violate the FMLA.  Similarly, a system that triggers penalties when an employee misses a certification deadline could violate the FMLA if the deadline should not have been imposed or the system failed to appropriately take into account circumstances that permit extra time for submission.  As with the eligibility determinations, the use of AI or other automated technologies to determine FMLA eligibility or benefits may also raise compliance challenges under federal, state, and local anti-discrimination laws enforced by other agencies.

AI is sometimes used to process leave requests, track time off, and integrate absence calendars.  “Without responsible human oversight, relying on automated systems to process leave requests, including determining eligibility, calculating available leave entitlements, or evaluating whether leave is for a qualifying reason, can create potential compliance challenges.”

Employers are prohibited from using such systems to count FMLA leave use as a negative factor in employment actions such as hiring, promotions, disciplinary actions, or assigning negative attendance points to FMLA-protected absences.  An employer would also violate the FMLA if an automated system fails to provide benefits to an employee on FMLA leave if the employer provides those benefits to employees who use other similar types of leave.  DOL warns that, “In instances in which employers use AI or automated systems to take adverse action against employees based on the use of FMLA leave, unlawful retaliation or interference may occur across a large group of employees.”

DOL states that, “Employers must comply with the FMLA regardless of whether they use AI or other automated systems to track and manage the administration of federally protected leave…. The use of AI or automated technologies should be overseen by the employer to avoid the risk of widespread violations of FMLA rights when eligibility, certification, and anti-retaliation and anti-interference requirements are not complied with.”  It further notes that, “[w]hile violations could also occur under human decision making, the use of AI or other automated systems could result in violations across the entire workforce.” Finally, DOL reminds employers that, regardless of the AI system they use, they are “ultimately responsible for ensuring that these systems comply with the law.”

FAB 2024-1 is available at: https://www.dol.gov/sites/dolgov/files/WHD/fab/fab2024_1.pdf