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10/18/2015 6:38:01 PM
WH-381: FMLA Notice of Eligibility and Rights & Responsibilities.
The employer should give the employee the Form WH-381 when the employee first asks for leave or when it first becomes apparent to the employer that the employee may qualify for FMLA leave even if the employee does not ask for it; for example, if the employee is absent for three or more days. The employer must give the employee this form (or some other communication containing the information that is in this form) within 5 days of the employee’s request for leave or within five days of the employer learning the employee might qualify for FMLA leave, whichever happens first.
Usually, the employer gives the Form WH-381 to the employee when the employer gives the employee the Form WH-380-E Certification of Health Care Provider described below. The employer needs to give the employee at least 15 days to return the Certification of Health Care Provider. The employer should enter the return date for the Certification of Health Care Provider in Part B of Form WH-381. I recommend including the date the Certification of Health Care Provider is supposed to be returned in a cover letter or memo to the employee too.
The Form WH-381 is a bit confusing because Part A has boxes to check for employee eligibility at a time when the employer has not yet received the medical information it may need to make a determination. The reason for this is to allow the employee to be placed on provisional FMLA leave pending receipt of the Certification of Health Care Provider. To do so, the employer would check the box that says, “This Notice is to inform you that you: __ Are eligible for FMLA leave.” In part B, the employer would fill in a date that is in 15 (or more) days from the date the employer gives the employee the form, and the employer would also check the box indicating that the employee needs to provide sufficient certification to support the request for FMLA leave and the box indicating that a certification form that sets forth the information necessary to support the request is enclosed.
It is important to check the correct boxes on page 2 of the Form WH-381 so that they are consistent with the employer’s policies and consistent with the nature of the employee’s illness.
For example, the middle of page 2 of Form WH-381 has boxes to check for calculating the 12-month period. There are four different methods to calculate the 12-month period, but the employer needs to use the same method for all its employees.
The employer should give the employee the Form WH-381 when the employee first asks for leave or when it first becomes apparent to the employer that the employee may qualify for FMLA leave even if the employee does not ask for it; for example, if the employee is absent for three or more days. The employer must give the employee this form (or some other communication containing the information that is in this form) within 5 days of the employee’s request for leave or within five days of the employer learning the employee might qualify for FMLA leave, whichever happens first.
Usually, the employer gives the Form WH-381 to the employee when the employer gives the employee the Form WH-380-E Certification of Health Care Provider described below. The employer needs to give the employee at least 15 days to return the Certification of Health Care Provider. The employer should enter the return date for the Certification of Health Care Provider in Part B of Form WH-381. I recommend including the date the Certification of Health Care Provider is supposed to be returned in a cover letter or memo to the employee too.
The Form WH-381 is a bit confusing because Part A has boxes to check for employee eligibility at a time when the employer has not yet received the medical information it may need to make a determination. The reason for this is to allow the employee to be placed on provisional FMLA leave pending receipt of the Certification of Health Care Provider. To do so, the employer would check the box that says, “This Notice is to inform you that you: __ Are eligible for FMLA leave.” In part B, the employer would fill in a date that is in 15 (or more) days from the date the employer gives the employee the form, and the employer would also check the box indicating that the employee needs to provide sufficient certification to support the request for FMLA leave and the box indicating that a certification form that sets forth the information necessary to support the request is enclosed.
It is important to check the correct boxes on page 2 of the Form WH-381 so that they are consistent with the employer’s policies and consistent with the nature of the employee’s illness.
For example, the middle of page 2 of Form WH-381 has boxes to check for calculating the 12-month period. There are four different methods to calculate the 12-month period, but the employer needs to use the same method for all its employees.
