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Family and Medical Leave Act Advisor

Recordkeeping Requirements

Employers covered by the FMLA are required to make, keep and preserve certain records pertaining to their obligations under the law. They are not required to submit any records to the DOL unless specifically requested by a DOL official.

No particular order or form of records is required. However, employers must keep the records specified by FMLA regulations for no less than three years and make them available for inspection, copying and transcription by DOL representatives upon request.

Covered employers who have eligible employees must maintain records that disclose the following:

  • Basic payroll and identifying employee data;
  • Dates FMLA leave is taken by FMLA-eligible employees (leave must be designated in records as FMLA leave), including the hours of the leave, if FMLA leave is taken in increments of less than one full day;
  • Copies of employee notices of leave provided to the employer under the FMLA, if in writing, and copies of all eligibility notices given to employees as required under the FMLA (copies may be maintained in employee personnel files).
  • Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave.
  • Premium payments of employee benefits.
  • 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 designation and for the disagreement.

Records and documents relating to medical certifications, recertifications, or medical histories of employees or employees' family members created for purposes of the FMLA must be maintained as confidential medical records in separate files/records from the usual personnel files. If the Genetic Information Nondiscrimination Act of 2008 (GINA) is applicable, records and documents created for purposes of the FMLA containing family medical history or genetic information as defined in GINA shall be maintained in accordance with the confidentiality requirements of Title II of GINA (see 29 CFR 1635.9), which permit such information to be disclosed consistent with the requirements of the FMLA. If the Americans with Disabilities Act (ADA) is also applicable, such records should be maintained in conformance with ADA confidentiality requirements, except that:

  • Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;
  • First aid and safety personnel may be informed if the employee's physical or medical condition might require emergency treatment; and
  • Government officials investigating compliance with the FMLA (or other pertinent laws) should be provided relevant information upon request.

Additional recordkeeping requirements apply to employers of airline flight crew employees.

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For more information on this aspect of the FMLA, see the FMLA regulations: ยง 825.500