The Department of Labor continues to increase investigator’s ability to pursue FMLA (Family Medical Leave Act) complaints. In 2018, the fines for violating FMLA increased. As a result, employers are more conscious than ever before about the need to stay compliant.
Sadly, as employers focus on qualifying employees for FMLA, tracking leave time available, and ensuring leave is used for qualified reasons, they miss some common areas of violations. 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 most vital for FMLA compliance?
In this article we will discuss the 7 most important records you must keep to ensure compliance with FMLA law.
1. Basic Payroll Records
Employers who don’t keep payroll records cannot ensure FMLA compliance. These records need to include several vital pieces of information:
- Employee’s name
- Address and phone number
- Pay Rate
- Terms of Compensation
- Daily and Weekly hours worked
- Additions and deductions to wages
- Total Compensation
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 cannot defend itself.
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, then you might be forced to [provide FMLA leave again!
2. Records of When FMLA Leave is Taken
Employers must keep records of FMLA leave taken. This includes the dates employees took leave and the request for leave. 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, they must inform the employee that the time qualifies under FMLA. Not all FMLA will be explicitly requested as FMLA leave by employees. Managers must be trained to spot FMLA related requests and to ask further questions. As a result, all information regarding how the employer discovered FMLA leave must be documented, including comments the employee made to their manager such as about adopting a child.
FMLA records must be maintained for at least 3 years. They must also be accessible to the Department of Labor for inspection.
- Records of when leave is taken
- Not every employee notifies management that leave is FMLA related so managers must be diligent about listening for FMLA clues
- Must be kept for 3 years
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 timekeeping. Intermittent leave can be tracked by recording the employee’s work schedule and subtracting from it the number of hours they took for FMLA leave. If the employee was scheduled to work 7 hours and only worked 3 hours, then 4 hours of FMLA leave can be counted. Employers must track this information.
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 employees timekeeping so that they have a baseline to compare to the new reduced schedule or intermittent leave. This provides clear records of the correct number of hours of FMLA leave and a clear defense for employers.
- 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 includes employee leave requests.
Employers should keep records of all correspondence with employees regarding FMLA leave. This can include email correspondence, FMLA leave request forms and notes of conversations with managers.
- FMLA leave requests
- FMLA certificates
- EMployer FMLA notices
- All correspondence regarding FMLA leave, including emails.
Records can be maintained in the employee’s’ personnel files
5. Benefits and Policies
Employers should keep all written policies regarding employee benefits, policies, and practices regarding taking paid or unpaid leave. Employers can require employees to use 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 your FMLA records.
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. Or, the employer can 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.
- Policies and procedures regarding the company’s policy of FMLA leave
- Policies regarding if employees are required to take paid 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. This includes any time FMLA leave was denied, such as because an employee was ineligible. It should also include any disputes regarding the designation of leave as FMLA leave or the unwillingness of the employee to return FMLA medical certifications to the employer.
- Disputes with the employee regarding qualifying for FMLA leave
- Disputes regarding the designation of leave as FMLA
- Disputes regarding FMLA medical certification or lack of returning the paperwork
- Other dispute information
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. Medical records include FMLA certifications, recertifications, and medical histories or employees or their family members.
- FMLA medical certifications and recertifications
- Medical records of the employees’ or their family members
Keeping FMLA records is vital for compliance. And employers must keep their records for at least 3 years. The records we’ve just gone over are often overlooked and missed by employers. Conduct an audit of your records to make sure you have everything on hand. Don’t be one of those employers!