Form WH-381 Notice of Eligibility and Rights and Responsibilities

Notice of Eligibility and Rights &
Responsibilities
(Family and Medical Leave Act)

U.S. Department of Labor
Wage and Hour Division

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OMB Control Number: 1235-0003
Expires: xx/xx/20xx

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In general, to be eligible an employee must have worked for an employer for at least 12 months, have worked at least 1,250 hours in the 12
months preceding the leave, and work at a site with at least 50 employees within 75 miles. While use of this form by employers is optional, a
fully completed Form WH-381 provides employees with the information required by 29 C.F.R. § 825.300(b), which must be provided within
five business days of the employee notifying the employer of the need for FMLA leave. Part B provides employees with information
regarding their rights and responsibilities for taking FMLA leave, as required by 29 C.F.R. § 825.300(b), (c).
[Part A – NOTICE OF ELIGIBILITY]
TO:

_ _______________________________________
Employee

FROM: _________ _______________________________
Employer Representative
DATE: _________ _______________________________
On _____________________, you informed us that you needed leave beginning on _______________________ for:
_____

The birth of a child, or placement of a child with you for adoption or foster care;

_____

Your own serious health condition;

_____

Because you are needed to care for your ____ spouse; _____child; ______ parent due to his/her serious health condition.

_____

Because of a qualifying exigency arising out of the fact that your ____ spouse; _____son or daughter; ______ parent is on active
duty or call to active duty status in support of a contingency operation as a member of the National Guard or Reserves.

_____

Because you are the ____ spouse; _____son or daughter; ______ parent; _______ next of kin of a covered servicemember with a
serious injury or illness.

This Notice is to inform you that you:
_____

Are eligible for FMLA leave (See Part B below for Rights and Responsibilities)

_____ Are

not eligible for FMLA leave, because (only one reason need be checked, although you may not be eligible for other reasons):

_____
_____
_____

You have not met the FMLA’s 12-month length of service requirement. As of the first date of requested leave, you will
have worked approximately ___ months towards this requirement.

You have not met the FMLA’s 1,250-hours-worked requirement.

You do not work and/or report to a site with 50 or more employees within 75-miles.

___________________________________________________ or view the
_________________________________________________________________________.

If you have any questions, contact
FMLA poster located in

[PART B-RIGHTS AND RESPONSIBILITIES FOR TAKING FMLA LEAVE]

As explained in Part A, y ou meet the eligibilit y requirements for taking F MLA leave and still have FMLA leave available in the applicable
12-month perio d. However, in order for us to determine whether your absence qualifies as FMLA leave, you must return the
following information to us by ___________________________________. (If a certification is requested, employers must allow at least 15
calendar days from receipt of this notice; additional time may be required in some circumstances.) If sufficient information is not provided in
a timely manner, your leave may be denied.
____

Sufficient certific ation to support your request for FMLA leave.
request ____is/____ is not enclosed.

A certification form that sets forth

the information nec essary to supp ort your

____

Sufficient documentation to establish the required relationship between you and your family member.

____

Other information needed: ________________________________________________________________________________________________
______________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________

____

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No additional information requested

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Form WH-381 Revised January 2009

If your leave does qualify as FMLA leave you will have the following responsibilities while on FMLA leave (only checked blanks apply):
____

Contact _____________________________________ at ___________________________ to ma ke arrangements to con tinue to make y our share
of the premium p ayments on y our health insurance to maintain health benefits while you are on leave. You have a minimum 30-day (or, indicate
longer period, if applicable) grace period in which to make premium payments. If payment is not made timely, your group health insurance may be
cancelled, provided we notify you in writing at least 15 days before the date that your health coverage will lapse, or, at our option, we may pay your
share of the premiums during FMLA leave, and recover these payments from you upon your return to work.

____

You will be requ ired to use your available paid ______ sick, _______ vacation, and/or ________other leave during your FMLA absence. This
means that you will receive your paid leave and the leave will also be considered protected FMLA le ave and counted against your FMLA leave
entitlement.

____

Due to your status within the company, you are considered a “key employee” as defined in the FMLA. As a “key employee,” restoration to
employment may be denied following FMLA leave on the grounds that such restoration will cause substantial and grievous economic injury to us.
We ___have/____ have not determined that restoring you to employment at the conclusion of FMLA leave will cause substantial and grievous
economic harm to us.

____

While on leave you will be required to furnish us with periodic reports of your status and intent to return to work every ______________________.
(Indicate interval of periodic reports, as appropriate for the particular leave situation).

If the circumstances of your leave change, and you are able to return to work earlier than the date indicated on the reverse side of this form, you will
be required to notify us at least two workdays prior to the date you intend to report for work.
If your leave does qualify as FMLA leave you will have the following rights while on FMLA leave:
•

You have a right under the FMLA for up to 12 weeks of unpaid leave in a 12-month period calculated as:
_____

•

the calendar year (January – December).

_____

a fixed leave year based on _______________________________________________________________________________________.

_____

the 12-month period measured forward from the date of your first FMLA leave usage.

_____

a “rolling” 12-month period measured backward from the date of any FMLA leave usage.

You have a right under the FMLA for up to 26 weeks of unpaid leave in a single 12-month period to care for a covered servicemember with a serious
injury or illness. This single 12-month period commenced on ________________________________________________________________________.

•
•
•

•

Your health benefits must be maintained during any period of unpaid leave under the same conditions as if you continued to work.
You must be reinstated to the same or an equivalent job with the same pay, benefits, and terms and conditions of employment on your return from
FMLA-protected leave. (If your leave extends beyond the end of your FMLA entitlement, you do not have return rights under FMLA.)
If you do not return to work following FMLA leave for a reason other than: 1) the continuation, recurrence, or onset of a serious health condition which
would entitle you to FMLA leave; 2) the continuation, recurrence, or onset of a covered servicemember’s serious injury or illness which would entitle
you to FMLA leave; or 3) other circumstances beyond your control, you may be required to reimburse us for our share of health insurance premiums
paid on your behalf during your FMLA leave.
If we have not informed you above that you must use accrued paid leave while taking your unpaid FMLA leave entitlement, you have the right to have
____ sick, ____vacation, and/or ___ other leave run concurrently with your unpaid leave entitlement, provided you meet any applicable requirements
of the leave policy. Applicable conditions related to the substitution of paid leave are referenced or set forth below. If you do not meet the requirements
for taking paid leave, you remain entitled to take unpaid FMLA leave.
____For a copy of conditions applicable to sick/vacation/other leave usage please refer to ____________ available at: ___________________________.
____Applicable conditions for use of paid leave:___________________________________________________________________________________
__________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________

Once we obtain the information from you as specified above, we will inform you, within 5 business days, whether your leave will be designated as
FMLA leave and count towards your FMLA leave entitlement. If you have any questions, please do not hesitate to contact:
_______________________________________________at ______________________________________.
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PAPERWORK REDUCTION ACT NOTICE AND PUBLIC BURDEN STATEMENT
It is mandatory for employers to provide employees with notice of their eligibility for FMLA protection and their rights and responsibilities. 29 U.S.C. § 2617; 29
C.F.R. § 825.300(b), (c). It is mandatory for employers to retain a copy of this disclosure in their records for three years. 29 U.S.C. § 2616; 29 C.F.R. § 825.500.
Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. The Department of Labor estimates that it
will take an average of 10 minutes for respondents to complete this collection of information, including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. If you have any comments regarding this burden
estimate or any other aspect of this collection information, including suggestions for reducing this burden, send them to the Administrator, Wage and Hour Division,
U.S. Department of Labor, Room S-3502, 200 Constitution Ave., NW, Washington, DC 20210. DO NOT SEND THE COMPLETED FORM TO THE WAGE
AND HOUR DIVISION.
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Form WH-381 Revised January 2009

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