Updated May 22, 2023
The Department of Labor continues to increase investigator’s ability to pursue FMLA (Family Medical Leave Act) complaints. In 2023, lawmakers noted the 30th anniversary of the passing of the FMLA and introduced new actions to support and advance economic security for women. These actions included encouraging federal agency heads to provide access to leave when needed, including employees within their first year of service, and supporting paid leave efforts in states.
While it’s important to consider how to qualify employees for FMLA, track leave time available, and ensure leave is used for qualified reasons, employers of all sizes are prone to mistakes. The lesser-known record keeping aspects are vital to maintaining FMLA compliance. FMLA law assumes employer guilt in the absence of adequate records.
What Records are Required for FMLA Compliance?
In this article we will discuss the 7 most important records you must keep to maintain compliance with FMLA law.
1. Basic Payroll Records
Employers who don’t keep payroll records cannot ensure FMLA compliance. These records need to include the following vital pieces of information on each employee:
- Name
- Address and phone number
- Position
- Pay rate
- Terms of compensation
- Daily and weekly hours worked
- Additions and deductions to wages
- Total compensation
All of this information is vital. Consider for a moment an employer who fails to track an employee’s hours worked. The employee’s schedule varies from week to week. After the employee takes FMLA leave, he accuses the employer of giving him fewer hours and discriminating against him because he took FMLA leave. Without adequate payroll records, the employer has no defense.
Here’s another reason why you need to keep payroll records on your employees. When you are qualifying an employee for FMLA work, the ability to show that they have met the 1,250 hours in the last 12 months is critical. If you mistakenly give an employee FMLA leave when they didn’t qualify, you could be forced to provide FMLA leave again.
2. Records of When FMLA Leave is Taken
Employers must keep records of any FMLA leave taken to stay in compliance with FMLA laws. This data should include the request for leave and the dates the leave was taken. It is important to note that employers have a deadline for informing employees that FMLA leave is being used.
If an employer finds out that the reason for an employee’s absence was FMLA-related, it’s vital to inform the employee that the time qualifies for this type of leave. An employee may not realize that a particular need qualifies for FMLA leave, so managers must be trained to spot related requests and ask further questions. As a result, all information regarding how the employer discovered FMLA leave must be documented. This information could include comments made by the employee to their manager, such as about adopting a child or caring for an ailing family member.
Record requirements:
- Details around when leave is taken
- Notes about whether an employee qualifies for FMLA leave based on comments or clues
- Must be kept for 3 years and be accessible to the Department of Labor for inspection at any time
3. Records Pertaining to FMLA Leave
It is vital that employers track intermittent or reduced schedule FMLA leave. However, this is nearly impossible without also tracking employee time. Intermittent leave can be tracked by recording the employee’s work schedule and subtracting from it the number of hours taken for FMLA leave. If the employee was scheduled to work seven hours and only worked three hours, then four hours of FMLA leave can be counted. Employers must track this information to prevent an employee from taking more time than is available to them.
However, it can get more complicated when employees provide advance notice of the need for leave and schedules can be built around those needs. It can also be difficult if an employee works fluctuating hours.
Employers need to track employee hours to create a baseline to compare to the new reduced schedule or intermittent leave. This data provides clear records of the correct number of hours of FMLA leave and serves as a clear defense for employers. Make sure your data includes:
- Employee timekeeping records to use as a baseline for hours worked before intermittent leave
- Records of intermittent leave taken
- Records of the reduced leave schedules provided
- Records of the total hours taken through intermittent leave or reduced work schedule each pay period
4. Written FMLA Notices
All records and correspondence regarding FMLA leave must be kept. This information includes employee leave requests. Employers should keep records of all correspondence with employees regarding FMLA leave, typically in the employee’s file. Records could include:
- Email correspondence
- Formal FMLA leave request forms
- Notes from conversations with managers
5. Benefits and Policies
Employers should maintain written policies regarding employee benefits, policies, and practices regarding taking paid or unpaid leaves of absence. Employers can require employees to use any accrued paid leave for all or part of their FMLA leave. A policy requiring the use of PTO or other leave should be written and maintained as part of the organization’s FMLA records. All employees should also have access to this policy and review it regularly.
In addition, employers should maintain records of group benefits kept while the employee is on leave. Employers can require that employees continue to pay their portion of their benefits. Employee payments can be due at the time the employee normally pays their premiums, such as at regular pay periods. An employer can also negotiate other payment options, such as increased premium payments leading up to leave or a lump sum payment.
All agreements with the employee should be in writing and may include:
- Policies and procedures regarding the company’s policy of FMLA leave
- Policies outlining whether employees are required to take accrued paid leave (PTO, vacation time, sick leave) during FMLA leave
- Employee benefits information
- Premiums paid for employee benefits continued coverage
- Employee obligations and payments required to maintain benefits
- Employee payments toward their benefits
6. FMLA Disputes
Employers should keep all paperwork regarding employee disputes. These records may include:
- Any denials of FMLA leave requests for any reason (including eligibility for this type of leave)
- Disputes regarding the designation of leave as FMLA
- Disputes regarding FMLA medical certification or lack of returning the paperwork
7. Medical Records
All medical records pertaining to FMLA leave must be kept and maintained. However, it is important for employers to keep employee medical records separate from other personnel files due to the sensitive nature of these documents.
Medical records include:
- FMLA certifications and recertifications
- Medical histories or employees or their family members
Stay in Compliance with Detailed Time and Accrual Records
Keeping FMLA records is vital for compliance, and those records must be kept for three years. These records outlined are often overlooked by employers, which violates their compliance with this federal law.
If you need a better way to track employee time to ensure compliance, WorkforceHub is a simple solution that’s affordable and highly user-friendly. Explore this option and the detailed records available to find out whether it’s right for your company.
It’s also important to conduct regular audits of your records to make sure you have everything on hand for all employees who have taken FMLA leave in the past. Don’t be one of those employers!
