美国劳工部发布人工智能和FMLA管理指南

美国的工资和工时局(WHD).S. 美国劳工部最近发布了一份 现场援助公报 (FAB) warning that the use of artificial intelligence (AI) and other automated systems could cause employers to violate laws WHD enforces, including the federal Family and Medical Leave Act (FMLA).

Noting the growing use of AI and automated systems in the workplace for tasks such as tracking time off and integrating absence calendars, the FAB identified the following specific areas of concern with respect to FMLA compliance:

• 处理休假申请;
• The imposition of improper certification requirements; and  
• FMLA干涉和报复.

FABs provide WHD investigators and staff with guidance on enforcement positions and clarification of policies or changes in WHD policy. 虽然他们没有建立法律要求, FABs can be a useful source of compliance information for employers. 

行动步骤

Because employers are ultimately responsible for ensuring that AI and automated programs comply with the law, the WHD advises employers to ensure responsible human oversight of their use. This can help avoid the risk of widespread violations of the FMLA should these programs fail to comply with eligibility, certification or anti-retaliation and anti-interference requirements. 

突出了

• The WHD has issued an FAB on the use of AI and other automated systems in administering the FMLA and other employment laws.
• The FAB raises specific concerns about AI and other automated systems in the areas of leave requests, 医学认证, 以及FMLA的干涉和报复.

给雇主的建议

The WHD  suggests employers watch for AI and automated system errors in the following tasks, 其中:

• 根据工作时间确定资格;
• Retesting for FMLA eligibility; and
• 遵循FMLA的医疗认证规则.

休假的概述

The FMLA requires covered employers of eligible employees to provide up to 12 weeks of unpaid, job-protected leave for qualifying family and medical reasons. Most private employers with at least 50 employees are covered by the FMLA. FMLA对雇员的资格要求包括, 除此之外, that they work for their employer for at least 12 months and at least 1,在休假前的12个月内工作250小时.

与FAB相关, employers may require medical certification in support of FMLA leave, and they are prohibited from retaliating against employees for taking the leave. 此外, once an employer determines an employee’s eligibility for leave, an employer cannot retest employee eligibility until the beginning of a new 12-month period or if the employee requests FMLA leave for a different reason.

处理休假申请

The FAB cautions that relying on automated systems to process FMLA leave requests risks noncompliance in several ways. One is by using systems that make predictions and auto-populate time entries. These systems base their decisions on prior time entries, 定期安排轮班和休息时间, 业务规则和其他数据. 根据FAB, the systems can incorrectly calculate actual time worked and, 因此, fail to recognize when an employee has met the hours-worked requirement for FMLA eligibility.

The WHD advises that AI and other systems can also incorrectly determine which days should be counted against an employee’s leave entitlement, 哪些可能导致不正当的休假拒绝. The FAB also alludes to but does not explain possible issues with relying on AI to evaluate whether leave is being requested for a qualifying reason. 最后, the FAB raises the concern that AI can test for FMLA eligibility more often than the law allows.

The guidance acknowledges that these compliance issues can occur with human decision-making as well. 然而, it asserts that the violations can be more widespread with AI or other automated systems, 影响雇主的全体员工.

支持FMLA休假的证明

The FMLA has specific rules about what information can be requested via a medical certification. 它还详细说明了此类请求必须遵循的时间. The FAB raises the possibility that AI systems may fail to adhere to FMLA provisions for 医学认证 by asking for information beyond what the law allows or by not permitting employees the required time to cure an incomplete certification. 

FMLA干涉和报复 

Although it does not provide examples of employers making this mistake, the FAB warns against using AI systems that track and analyze leave to discourage employees from using FMLA leave, 因为这会违反FMLA. The FAB issues a similar warning against using such systems to retaliate against employees who have used FMLA leave, 这也会违反法律. 

This Compliance Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. 读者应向法律顾问咨询法律意见. ©2024 Zywave, Inc. 版权所有.