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
OMB Control Number: 1235-0003
Expires: 2/28/2015

In general, to be eligible an employee must have worked for an employer for at least 12 months, meet the hours of service requirement 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 CFR 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 CFR 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 ____

_____

Because of a qualifying exigency arising out of the fact that your ____ spouse; _____son or daughter; ______ parent is on
covered active duty or call to covered active duty status with the Armed Forces.

_____

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

spouse; _____child; ______ parent due to his/her serious health condition.

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

If you have any questions, contact ___________________________________________________ or view the FMLA poster
located in _________________________________________________________________________.

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[PART B-RIGHTS AND RESPONSIBILITIES FOR TAKING FMLA LEAVE]
As explained in Part A, you meet the eligibility requirements for taking FMLA leave and still have FMLA leave available in the
applicable 12-month period. 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 certification to support your request for FMLA leave. A certification form that sets forth the information necessary to
support your request ____is/____ is not enclosed.

____

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

____

Other information needed (such as documentation for military family leave):
________________________________________________________________________________________________

____

No additional information requested

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 make arrangements to continue
to make your share of the premium payments on your 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 required 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 leave
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 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.)

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Form WH-381 Revised XXX 2013

•

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 __________________________________.

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 CFR 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 CFR 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 XXX 2013