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Content Last Revised: 3/30/95
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CFR  

Code of Federal Regulations Pertaining to ESA

Title 29  

Labor

 

Chapter V  

Wage and Hour Division, Department of Labor

 

 

Part 825  

The Family and Medical Leave Act of 1993

 

 

 

Subpart E  

What Records Must Be Kept to Comply With the FMLA?


29 CFR 825.500 - What records must an employer keep to comply with the FMLA?

  • Section Number: 825.500
  • Section Name: What records must an employer keep to comply with the FMLA?

    (a) FMLA provides that covered employers shall make, keep, and 
preserve records pertaining to their obligations under the Act in 
accordance with the recordkeeping requirements of section 11(c) of the 
Fair Labor Standards Act (FLSA) and in accordance with these 
regulations. FMLA also restricts the authority of the Department of 
Labor to require any employer or plan, fund or program to submit books 
or records more than once during any 12-month period unless the 
Department has reasonable cause to believe a violation of the FMLA 
exists or the DOL is investigating a complaint. These regulations 
establish no requirement for the submission of any records unless 
specifically requested by a Departmental official.
    (b) Form of records. No particular order or form of records is 
required. These regulations establish no requirement that any employer 
revise its computerized payroll or personnel records systems to comply. 
However, employers must keep the records specified by these regulations 
for no less than three years and make them available for inspection, 
copying, and transcription by representatives of the Department of Labor 
upon request. The records may be maintained and preserved on microfilm 
or other basic source document of an automated data processing memory 
provided that adequate projection or viewing equipment is available, 
that the reproductions are clear and identifiable by date or pay period, 
and that extensions or transcriptions of the information required herein 
can be and are made available upon request. Records kept in computer 
form must be made available for transcription or copying.
    (c) Items required. Covered employers who have eligible employees 
must maintain records that must disclose the following:
    (1) Basic payroll and identifying employee data, including name, 
address, and occupation; rate or basis of pay and terms of compensation; 
daily and
weekly hours worked per pay period; additions to or deductions from 
wages; and total compensation paid.
    (2) Dates FMLA leave is taken by FMLA eligible employees (e.g., 
available from time records, requests for leave, etc., if so 
designated). Leave must be designated in records as FMLA leave; leave so 
designated may not include leave required under State law or an employer 
plan which is not also covered by FMLA.
    (3) If FMLA leave is taken by eligible employees in increments of 
less than one full day, the hours of the leave.
    (4) Copies of employee notices of leave furnished to the employer 
under FMLA, if in writing, and copies of all general and specific 
written notices given to employees as required under FMLA and these 
regulations (see Sec. 825.301(b)). Copies may be maintained in employee 
personnel files.
    (5) Any documents (including written and electronic records) 
describing employee benefits or employer policies and practices 
regarding the taking of paid and unpaid leaves.
    (6) Premium payments of employee benefits.
    (7) Records of any dispute between the employer and an eligible 
employee regarding designation of leave as FMLA leave, including any 
written statement from the employer or employee of the reasons for the 
designation and for the disagreement.
    (d) Covered employers with no eligible employees must maintain the 
records set forth in paragraph (c)(1) above.
    (e) Covered employers in a joint employment situation (see 
Sec. 825.106) must keep all the records required by paragraph (c) of 
this section with respect to any primary employees, and must keep the 
records required by paragraph (c)(1) with respect to any secondary 
employees.
    (f) If FMLA-eligible employees are not subject to FLSA's 
recordkeeping regulations for purposes of minimum wage or overtime 
compliance (i.e., not covered by or exempt from FLSA), an employer need 
not keep a record of actual hours worked (as otherwise required under 
FLSA, 29 CFR 516.2(a)(7)), provided that:
    (1) eligibility for FMLA leave is presumed for any employee who has 
been employed for at least 12 months; and
    (2) with respect to employees who take FMLA leave intermittently or 
on a reduced leave schedule, the employer and employee agree on the 
employee's normal schedule or average hours worked each week and reduce 
their agreement to a written record maintained in accordance with 
paragraph (b) of this section.
    (g) Records and documents relating to medical certifications, 
recertifications or medical histories of employees or employees' family 
members, created for purposes of FMLA, shall be maintained as 
confidential medical records in separate files/records from the usual 
personnel files, and if ADA is also applicable, such records shall be 
maintained in conformance with ADA confidentiality requirements (see 29 
CFR Sec. 1630.14(c)(1)), except that:
    (1) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of an employee and necessary 
accommodations;
    (2) First aid and safety personnel may be informed (when 
appropriate) if the employee's physical or medical condition might 
require emergency treatment; and
    (3) Government officials investigating compliance with FMLA (or 
other pertinent law) shall be provided relevant information upon 
request.

(Approved by the Office of Management and Budget under control number 
1215-0181)

[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]



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