FMLA form WH-381.

What WH-381 is

The Department of Labor describes WH-381 on its FMLA forms page as the form that informs the employee of his or her eligibility for FMLA leave, or at least one reason why the employee is not eligible. In its combined version it also carries the rights and responsibilities notice, which tells the employee the specific expectations and obligations of the leave and the consequences of failing to meet them. The forms are optional: employers can create their own as long as they provide the same basic notice information. Employers who use the DOL version have a ready format; the regulation itself names Form WH-381 as one way to give the eligibility notice, which may also be given orally or in writing (29 CFR 825.300(b)(2)).

The three notices and when they are due

What the eligibility notice must say

The notice must state whether the employee is eligible for FMLA leave as defined in 825.110. If the employee is not, it must state at least one reason, including as applicable the number of months employed, the hours of service in the 12-month period, and whether the worksite has 50 or more employees within 75 miles (825.300(b)(2)). Eligibility is determined, and the notice given, at the start of the first instance of leave for each FMLA-qualifying reason in the 12-month period. All absences for the same reason are one leave, and eligibility for that reason does not change during the period. If a later request is for a different qualifying reason and eligibility has not changed, no new eligibility notice is needed. If it has changed, the employer must tell the employee within five business days (825.300(b)(3)).

What the rights and responsibilities notice covers

Where relevant, the written notice explains that leave may be designated and counted against the annual entitlement and what the 12-month period is; any requirement to provide certification and the consequences of not doing so; the right to substitute paid leave and whether the employer requires it; any premium payments needed to keep health benefits and when coverage may lapse; the employee’s status as a key employee and the possible consequence of denied restoration; the right to maintained benefits and restoration to the same or an equivalent job; and the potential liability to repay health premiums if the employee does not return after leave (825.300(c)(1)). If any of this changes, the employer provides written notice of the change within five business days of the employee’s next notice of need for leave. The notice may be accompanied by any required certification form, so many employers send WH-381 together with WH-380-E.

The designation notice

The employer, not the employee, is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of it. When it has enough information, for example after a certification arrives, it must tell the employee within five business days whether the leave will be designated and counted. Only one designation notice is required for each qualifying reason per 12-month period, however the leave is taken. The designation notice must be in writing, and a simple written statement is enough when leave is not designated because it does not meet the Act’s requirements. It must also state the amount of leave counted against the entitlement, if known, or provide it on request, no more often than once in a 30-day period, when leave is unforeseeable intermittent leave (825.300(d)).

Counting five business days

The tool counts Monday to Friday, starting the day after the date you enter. The regulation does not list holidays, so subtract any federal or company holidays your workplace treats as non-business days. Extenuating circumstances can extend the time, but the regulation does not define them for notices; document the reason if you rely on it.

Worked example

An employee emails on Monday, November 2, 2026 asking for leave to have a baby. Five business days later is Monday, November 9: the eligibility notice and rights and responsibilities notice (WH-381) are due that day. The employer sends WH-380-E with them. The completed certification arrives on Thursday, November 12 and the employer has enough information to decide. The designation notice (WH-382) is then due Thursday, November 19.

If the employer does not give notice

Failure to follow the notice requirements may constitute interference with, restraint or denial of the exercise of an employee’s FMLA rights. The employer can be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result, and for appropriate equitable relief (825.300(e), 825.400(c)).

Sources

Sources opened and read November 2, 2026.

• U.S. Department of Labor: FMLA forms page (Internet Archive copy; dol.gov returns 403 to automated requests) (read November 2, 2026)
• eCFR: 29 CFR 825.300 Employer notice requirements (current through October 29, 2026) (read November 2, 2026)
• eCFR: 29 CFR 825.305 Certification, general rule (current through October 29, 2026) (read November 2, 2026)