Monday, April 11, 2011

FMLA coverage vs. eligibility: Employer notice and recordkeeping requirements

Last week, we discussed the difference between employer coverage and employee eligibility in the calculus of determining when you must provide FMLA leave to an employee. Today, we’ll examine the two other key areas in which this distinction matters: notice and recordkeeping.


Every employer covered by the FMLA is required to post a notice explaining the FMLA’s provisions. The notice must be posted prominently where it can be easily seen by employees and applicants for employment, and must be large enough to be legible and easily read. A copy of the poster suggested by the Department of Labor is available (as a PDF) from the DOL’s website.

Covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must post this general notice even if no employees are eligible for FMLA leave (no employee was employed for at least 12 non-consecutive months, worked 1,250 hours during the 12-month period preceding the start of the requested leave; and works at a location where the employer employs 50 or more employees within a 75-mile radius).

If, however, an FMLA-covered employer has at least one FMLA-eligible employees, it must also provide this same general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring. In either case, distribution may be accomplished electronically.


The FMLA requires covered employers to maintain records that disclose the following information on all employees:

  • 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 total compensation paid.

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

  • Dates FMLA leave is taken by FMLA eligible employees. Time records and leave request forms are sufficient as long as the leave in those records is designated as FMLA leave.
  • If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
  • Copies FMLA-leave requests made by employees (if in writing), and copies of all written FMLA designations and other notices given to employees. 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 leaves.
  • 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 the designation and for the disagreement.

An employer is not required to keep a record of actual hours worked for any FMLA-eligible employee who is either not covered by the FLSA or are exempt from the FLSA. For these employees, however, FMLA eligibility will be presumed for any employee who has been employed for at least 12 months. Additionally, for employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee must agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record that that employer preserves.

Employers must maintain records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, as confidential medical records in separate files/records from the usual personnel files, and in compliance with ADA confidentiality requirements.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or