Key Takeaways

  • Form WH-381 is the Notice of Eligibility and Rights & Responsibilities employers must issue when an employee requests FMLA leave.
  • The form ensures employees are informed of their FMLA eligibility, required documentation, and their rights while on leave.
  • Employers must provide the WH-381 within five business days of an employee’s leave request.
  • Failure to provide the form properly can result in compliance violations and potential penalties.
  • The WH-381 includes sections on eligibility, employee responsibilities, and the specific calculation method used for FMLA leave.
  • Employers must use clear, timely communication and maintain consistency with Department of Labor standards when issuing WH-381 notices.

What is FMLA Form WH-381?

FMLA Form WH-381 is the primary form employees use when requesting FMLA leave. It is also known as the Notice of Eligibility and Rights and Responsibilities form.

Under the Family and Medical Leave Act (FMLA), an employee is allowed to take unpaid leave from their job in order to care for an immediate family member or their own medical condition. Employees may also take time off work under FMLA for matters related to a spouse's, child's, or parent's military deployment.

The Family and Medical Leave Act also entitles eligible employees to up to 12 weeks of unpaid, job-protected leave during any given year for the birth and care of that person's child. This also includes adopting or fostering a child.

Regardless of the reason for taking FMLA leave, the law states that an employee's group health benefits must continue.

The FMLA is managed by the U.S. Department of Labor's Employment Standards Administration's Wage and Hour Division. Request for FMLA leave requires a number of forms, and even then it isn't automatically granted.

FMLA was signed into law in 1993 and was amended in 2008 by the National Defense Authorization Act. This amendment expanded coverage for specific military circumstances, including the care of injured military family members and for other situations related to military service.

As such, it is against the law for any employer to deny, restrain, or interfere with the rights laid out by FMLA. If an employee feels their rights are being violated, he or she can file a complaint with the Department of Labor or pursue a private civil action in court at the federal or state level. Any employee whose rights are determined to have been violated is often awarded damages.

Importance of the WH-381 in Compliance

The WH-381 form is not optional—it is a required compliance tool under the Family and Medical Leave Act. When an employer fails to issue the WH-381, they risk violating federal law, which can lead to Department of Labor investigations, civil penalties, or lawsuits from employees. Because the WH-381 confirms both eligibility and responsibilities, it serves as the official record that the employer has communicated all necessary information. Employers who omit or delay the form may unintentionally interfere with an employee’s rights under the FMLA.

FMLA Eligibility

FMLA law applies to all public agencies, including local, state, and federal employers. It also extends to local education organizations.

In the private sector, businesses that have 50 or more employees during at least 20 workweeks in a calendar year must also abide by FMLA laws.

Workers who have employed at a company for at least one year and have accumulated at least 1,250 hours of service in the year leading up to the leave are also covered.

FMLA Leave Provision

FMLA usually provides eligible employees with the ability to take up to 12 weeks of unpaid leave during any given year for:

  • an inability to work due to an illness or surgery
  • the birth and care of a newborn
  • the placement and care of an adopted or foster child
  • the care of a parent, spouse, or child

FMLA also considers "qualifying exigencies" relating to an employee's spouse, child, or parent who is on active military duty or is an active member of the National Guard or Reserves.

Qualifying exigencies include:

  • issues stemming from deployment
  • military events and other related activities
  • certain types of childcare and related activities affected by active duty
  • updating or making legal or financial arrangements in a military member's absence
  • counseling stemming from a military member's active duty status
  • taking up to five days to spend with a military member who is on short-term leave during deployment
  • post-deployment activities
  • any other event related to a military member's absence as agreed upon between the employee and employer

FMLA leave for military employees may be taken all at once or intermittently depending on the need.

Under FMLA, employers must maintain the military employee's preexisting health coverage while he or she is away on leave. In addition, that employee must be given their job back with the same benefits and pay they enjoyed before taking FMLA leave.

Employees may choose to use any accrued vacation time as well in conjunction with FMLA leave. Regardless, using FMLA cannot result in an individual being terminated from a job, losing employee benefits, or losing any benefits earned before taking leave.

Serious Health Conditions

Serious health conditions include illnesses, injuries, physical impairments, or mental conditions that affect an employee's ability to work. These health issues may involve inpatient hospital care, hospice care, or treatment at a residential healthcare facility. Essentially, any period during which an employee is incapacitated or receiving treatment in inpatient care falls under the definition of "serious health condition."

Taking FMLA leave for a serious health condition can also include treatments by the employee's healthcare provider. These treatments include:

  • a period lasting more than three consecutive days during which the employee is incapacitated
  • any subsequent treatments or incapacitation related to the same condition
  • treatment two or more times under a healthcare provider
  • a single treatment within a regimen of continuing treatments

Employees can also take FMLA leave for pregnancy-related issues or prenatal care. Visiting a doctor is not required for each FMLA absence for chronic health conditions or conditions like pregnancy which continue for an extended length of time. These instances only require periodic doctor visits because the episodes of incapacity are typically sporadic.

A serious health condition is also considered to be a permanent or long-term period of incapacity due to a condition that doesn't have an effective form of treatment. It also considers any absences for multiple treatments, including restorative surgery.

Calculating FMLA Leave

Under FMLA, eligible employees can take up to 12 workweeks of leave in any one-year period for qualifying situations. The only exception is military caregiver leave.

A one-year period is defined more specifically as a 12-month timeframe or calendar year. This allows an employer to decide whether to abide by a fixed calendar year or a rolling period that starts when the employee first takes the FMLA leave.

From a business perspective, the "rolling method" that calculates leave from the date an employee first takes the leave is the best option. Otherwise, employees may have to "stack" their FMLA leave, which means taking two simultaneous leave periods that can equal 24 weeks instead of 12.

Under the rolling 12-month period, an employee takes their leave and the remaining balance is whatever has not been used from those allotted 12 weeks during the preceding 12 months leading up to the FMLA leave.

According to FMLA, military caregivers cannot take leave using the rolling method. Instead, a military caregiver's 26-week leave is determined based on the first day the employee takes FMLA to care for a covered military servicemember. The period ends one year after this date regardless of any other methods the employer uses to calculate FMLA leave.

Leave entitlement is determined on an individual basis, considering the servicemember and injury in question. Because of this, if an employee has more than one covered military members they are caring for and the same person suffers a second injury, the employee can take extra leave.

FMLA WH-381 Form Instructions

Employees will need to declare their intentions to take FMLA leave at least 30 days in advance. Naturally, some circumstances are unforeseen, so just because someone cannot give 30 days' notice doesn't mean he or she will be denied.

When an FMLA leave request is unexpected, it's important to give the employer notice as soon as the circumstances allow.

The employer will fill out the WH-381 form, which is the document providing employees with important essential information related to their FMLA leave request.

Employers covered under FMLA will also need to review the Notice of Eligibility and Rights & Responsibilities form. These forms, including the WH-381, are available on the Department of Labor website.

The WH-381 form's Part A details FMLA eligibility and asks the individual to state the reason behind the leave request. Part A also states whether the employee is covered under the law, which can vary depending on the circumstances.

After informing the employee of his or her eligibility for taking FMLA leave, the WH-381 form directs the individual to company personnel, generally the human resources department, that can answer additional questions related to leave status.

Part B of the WH-381 form details the employee's rights and responsibilities under FMLA law. This section tells the individual that there is a deadline for completing a medical certification, validating a family relationship, and completing other necessary forms. This timeframe is generally 15 calendar days.

Not filling out, completing, and returning any of these forms will result in an automatic denial of FMLA leave.

"Key employees" of a company applying for FMLA leave will also need to complete an additional section in Part B. Key employees are typically in management positions. Unlike other employees, they may not have a guaranteed job at the end of the leave, which is usually due to any undue economic hardships the company might experience by restoring the employee to his or her previous position. 

In the last section of the WH-381 form's Part B, qualifying employees are informed about their FMLA rights. This section also details the 12-month period used to calculate FMLA leave by either calendar year, a fixed 12-month period, or a "rolling" period.

The last part of the WH-381 form reminds employees that they must continue to maintain their health insurance coverage and, if for some reason they don't come back to work, they must repay any money the company contributed to the plan during that time.

A finished WH-381 gives employees all the information they need to understand their FMLA leave. They must provide this information within five business days from when they first notified their employer that FMLA leave is needed.

Although there are several FMLA forms available that do essentially the same thing, the WH-381 or the Notice of Eligibility and Rights & Responsibilities form is the FMLA standard for giving employees relevant information about their responsibilities and rights as they take leave.

Timing and Delivery of the WH-381

Employers are legally required to provide the WH-381 form to employees within five business days of receiving a request for FMLA leave or learning that an employee may need leave. This timing ensures employees can plan appropriately and return required certifications promptly. The form may be delivered in person, by mail, or electronically, but employers should always keep a copy in the employee’s personnel file as evidence of compliance.

Employee Requirements

When requesting FMLA leave, by law an employee must be notified of their leave eligibility. Employers must inform the employee of his or her rights and responsibilities, which can also be found on the WH-381 form. Employees should then be notified that leave is designated as FMLA when the employer has made the decision to treat it as such.

Employers should post a notice that has been approved by the Secretary of Labor. This notice should explain employee rights and responsibilities under the FMLA. Include any information listed in the notice in employee handbooks or simply give a copy to all new hires.

By law, employers cannot count "light-duty" assignments against the 12-week FMLA leave entitlement.

An employer can request that an employee support his or her FMLA request with the proper documents from a doctor or other healthcare provider. In the case of qualifying exigency leave, these documents should come in the form of military orders.

With the exception of military leave, employers can request a second or third medical opinion and additional certification, although these requests must be covered at the employer's expense.

When requiring additional documentation for FMLA leave, the employee's direct supervisor is not allowed to clarify or authenticate the provided medical certification.

Employers can request a recertification of an employee's or family member's health condition, although they cannot request the same in military situations.

Common Employer Mistakes with WH-381

Despite the importance of the WH-381, many employers make mistakes that create compliance risks. Common issues include:

  • Failing to send the form on time. Employers sometimes wait longer than five business days, leaving employees uninformed of their rights.
  • Not specifying the calculation method. Employers must clearly state whether FMLA leave is tracked by calendar year, fixed year, or rolling 12-month period.
  • Leaving out certification deadlines. Employees generally have 15 days to provide medical or supporting documentation, and this must be included in the notice.
  • Not tailoring the notice. The WH-381 must reflect the employee’s specific circumstances rather than a generic statement.

By addressing these pitfalls, employers can reduce the risk of disputes and demonstrate good faith compliance.

Revised FMLA Forms

New FMLA regulations saw changes on March 8, 2013 in the provisions dealing with military members and families. In addition to requiring a new FMLA poster that clearly outlines these changes, the U.S. Department of Labor Wage-Hour Division has updated all FMLA forms and documents to comply with the latest FMLA regulations.

Changes to the WH-381 form were made during the regulation change because the form is used in every FMLA situation, whether military members are involved or not.

Employers with 50 or more employees who are covered by FMLA may use forms suggested by the Wage-Hour Division. They may also choose to develop their own FMLA forms if they prefer. Regardless, employers should go over their FMLA forms to ensure each one is up-to-date, especially form WH-381.

Best Practices for Using WH-381

To maximize compliance and minimize liability, employers should adopt best practices when using the WH-381:

  • Use the DOL template. While employers may create their own versions, the safest approach is to use the Department of Labor’s official form, which is updated regularly.
  • Be consistent. All employees should receive the WH-381 under similar circumstances to avoid claims of unequal treatment.
  • Train HR staff. Those issuing the form should be trained on FMLA regulations and on how to answer common employee questions.
  • Maintain documentation. Keep records of the form and any related certifications in case of audits or disputes.

Employers who follow these steps ensure they not only comply with the law but also foster transparency and trust with their workforce.

Frequently Asked Questions

1. Who completes the WH-381 form?

The employer is responsible for completing and issuing the WH-381 to the employee requesting FMLA leave.

2. How quickly must the WH-381 be provided?Employers must provide the WH-381 within five business days of the leave request or learning of the employee’s potential FMLA need.

3. What happens if an employer fails to provide the WH-381?

Failure to provide the WH-381 can result in FMLA compliance violations, legal challenges, or penalties from the Department of Labor.

4. Can an employer use their own version of the WH-381?

Yes, but it must include all legally required information. The Department of Labor’s template is recommended to avoid omissions.

5. Does receiving a WH-381 guarantee FMLA leave approval?

No. The WH-381 confirms eligibility and outlines responsibilities, but final approval depends on the employee providing necessary certifications and meeting all requirements.

If you need help with FMLA Form WH-381, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.