[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.500]



[Page 788-789]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

      Subpart E_What Records Must Be Kept To Comply With the FMLA?

 

Sec.  825.500  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



[[Page 789]]



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]