(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 FMLA exists
or the Department is investigating a complaint. These regulations
establish no requirement for the submission of any records unless
specifically requested by a Departmental official.
(b) 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) 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 written notices given to
employees as required under FMLA and these regulations (see Sec.
825.300(b) through (c)). 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) of this section.
(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 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 the ADA, as amended, is also applicable, such
records shall be maintained in conformance with ADA confidentiality
requirements (see 29 CFR 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.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68107, Nov. 17, 2008]
