Most employers with 50 or more employees, including state and territorial governments, are subject to the requirements of the Family and Medical Leave Act of 1993 (FMLA). Employees must have worked for a covered employer for at least one year before becoming eligible for the FMLA guarantee of 12 weeks of unpaid leave during any 12-month period for certain family or health related reasons. The Wage and Hour Division of the United States Department of Labor (WHD) is responsible for enforcing the FMLA.

To facilitate its enforcement efforts, the WHD has promulgated regulations requiring covered employers to retain a number of FMLA-related records for a specified period of time. This article summarizes the records retention requirements of FMLA regulations.

Pursuant to FMLA regulations, covered employers with eligible employees are required to retain for a period of three years the following records:

• Basic payroll and identifying employee data (This information must be retained under the FMLA even when a covered employer has no FMLA-eligible employees.)
  
• Dates FMLA leave is taken by FMLA-eligible employees
  
• If FMLA leave is taken by eligible employees in increments of less than one full day, the number of hours of leave taken
  
• Copies of employee notices of leave
  
• Documents describing employee benefits or employer policies and practices regarding the taking of leave
  
• Premium payments of employee benefits
  
• Records of any dispute between the employer and an employee regarding designation of leave as FMLA leave

The regulations also provide that any FMLA-created records relating to medical certifications, medical histories, or recertifications of an employee or his or her family members are to be retained as confidential medical records. As such, they are to be stored in separate files and not in the usual personnel files. If the Americans with Disabilities Act is also applicable, the records are to be maintained in conformance with ADA confidentiality requirements, except that:

• Supervising employees may be informed regarding any necessary restrictions on the work or duties of an employee and any necessary accommodations;
  
• Safety personnel may be informed if an employee's condition might require emergency treatment; and
  
• Government employees investigating FMLA compliance must be provided the information upon request.

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