FMLA WH-381 Form Instructions (Notice of Eligibility and Rights & Responsibilities)
Under the Family and Medical Leave Act (FMLA), an employee can take unpaid time off from work to take care of either their own medical condition or that of an immediate family member. Employees may also take leave under the federal law for tending to matters related to an immediate family member’s active military deployment.
Request for FMLA leave isn’t automatically granted and requires the completion of a number of FMLA forms. The primary form in this process is the Notice of Eligibility and Rights & Responsibilities form, also known as the Department of Labor’s WH-381 form.
Employees should declare their need for leave at least 30 days in advance, unless the need is unforeseen. The WH-381 form is the form filled out by an employer that provides employees with important information related to their leave request. Every employer covered under the FMLA should have the Notice of Eligibility and Rights & Responsibilities form, but if they do not – this and other FMLA forms are available on the DOL website.
Part ‘A’ of the WH-381 form deals with eligibility for FMLA leave and it asks for the reason behind the leave request, such as the birth of a child or a spouse’s call to active military duty. This section also lays out if the employee is covered under the law. This means that they must have worked at least 1,250 hours over the last 12 months and have been working at the company or organization for at least 1 year.
After informing the employee of their eligibility, this section of the WH-381 form then directs the employee to company personnel that can answer any questions regarding their leave status.
In part ‘B’ of the Notice of Eligibility and Rights & Responsibilities form, the employee’s rights and responsibilities under the law are laid out. The section informs an employee that they have until a given date, generally 15 calendar days after receiving the WH-381 form, to return a completed medical certification, validation of a familial relationship if leave is for a family member and any other necessary FMLA forms. The form also says that not filling out and returning finished forms will result in a denial of leave.
Part ‘B’ also explains details regarding the continuation of health benefits; the employee must continue to pay any premiums or co-pays as described in the employee’s health care plan. If an employee out on FMLA leave does not continue to pay premiums, their coverage may lapse. The employer must provide 15-days notice if this is going to occur.
This section of the WH-381 form also explains any company requirements regarding the use of sick or vacation time. A company can require that an employee use paid leave time while out on FMLA leave, but this must be part of the terms of employment and apply to all employees.
If the person requesting leave is a “key employee” under the FMLA, they will be informed in this section of the WH-381 form as well. Being this type of employee means that restoration to their job upon coming back from leave is not guaranteed – particularly if that restoration would cause undue economic harm to the company. Key employees are typically those in upper management positions.
In the final section of part ‘B’ of the Notice of Eligibility and Rights & Responsibilities form, a qualifying employee is informed of their rights under the FMLA. This section establishes if the regulatory 12 month period of FML is calculated by the calendar year, a fixed 12-month period or a “rolling” 12-month period.
This part of the WH-381 form reminds workers they must maintain their health insurance and if for some reason they do not come back to the company – they must repay any monies the company paid toward the plan.
While there are a number of FMLA forms out there that accomplish the same thing, the Notice of Eligibility and Rights & Responsibilities form (WH-381) is the federal standard for informing employees about their rights and responsibilities as they pertain to this particular leave situation.