Q&A: Documentation required under the FMLA

Keeping up with all the employment laws can be pretty confusing.  To top it off, you are often required to keep documentation pertaining to your obligations under these laws.  Here''s a list of the types of documentation you need to keep in accordance with the Family and Medical Leave Act (FMLA).

Q: What types of documentation are employers covered by the FMLA required to keep and provide?

A: The FMLA requires that covered employers make, keep, and preserve records pertaining to their obligations under the Act in accordance with the requirements of the Fair Labor Standards Act (FLSA) and in accordance with FMLA regulations. The FMLA also restricts the authority of the Department of Labor (DOL) to require any employer or plan and fund or program to submit books or records more than once during any 12-month period unless the DOL has reasonable cause to believe an FMLA violation exists or it is investigating a complaint. These regulations establish no requirement for the submission of any records unless specifically requested by a DOL official.

No particular order or form of records is required. The regulations do not require that you revise your computerized payroll or personnel records systems. But you must keep the records specified by the regulations for no less than three years and make them available for inspection, copying, and transcription by representatives of the DOL on request. The records may be maintained and preserved on microfilm or in the basic source document of an automated data processing memory, provided that adequate projection or viewing equipment is available, the reproductions are clear and identifiable by date or pay period, and extensions or transcriptions of the information required under the Act can be and are made available on request. Records kept in computer form must be made available for transcription or copying.

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

·        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 compensation paid;

·        dates FMLA leave is taken by FMLA-eligible employees (information should be available in time records, requests for leave, etc.) (Leave must be designated in records as FMLA leave, and FMLA leave may not include leave required under Arkansas law or an employer plan that is not also covered by the FMLA.);

·        if FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave;

·        copies of employee leave notices furnished to you under the FMLA, if in writing, and copies of all general and specific written notices given to employees as required under the FMLA and the regulations (Copies may be maintained in employee personnel files.);

·        any documents (including written and electronic records) describing employee benefits or your policies and practices for taking paid and unpaid leaves;

·        premium payments of employee benefits; and

·        records of any disputes between you and an eligible employee about designation of leave as FMLA leave, including any written statement from you or the employee of the reasons for the designation and for the disagreement.

Covered employers with no eligible employees must maintain the records set forth in subparagraph (a) above.

Covered employers in a joint employment situation must keep all the records required by subparagraphs (a) through (g) above for any primary employees and must keep the records required by subparagraph (a) above for any secondary employees.

If FMLA-eligible employees are not subject to the FLSA''s regulations for purposes of minimum wage or overtime compliance (i.e., not covered by or exempt from FLSA), you need not keep a record of their actual hours worked (as otherwise required under FLSA), provided:

1.      eligibility for the FMLA leave is presumed for any employee who has been employed for at least 12 months; and

2.      for employees who take FMLA leave intermittently or on a reduced-leave schedule, you and the employee agree in writing on the employee''s normal schedule or average hours worked each week.

Records and documents about medical certificates, recertification, or medical histories of employees or employees'' family members created for purposes of the FMLA must be maintained as confidential medical records separate from the usual personnel files, and if the ADA also is applicable, such records must be maintained in conformance with the ADA confidentiality requirements, except:

1.      supervisors and managers may be informed of necessary restrictions on an employee''s work or duties 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 the FMLA (or other pertinent law) will be provided relevant information on request.

Copyright 2000 M. Lee Smith Publishers LLC.

This article is an excerpt from Arkansas Employment Law Letter, written by the Little Rock-based law firm of Jack, Lyons & Jones, P.A.  Arkansas Employment Law Letter should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney.

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