FMLA Notices and Designation: Using Forms WH-381 and WH-382

9/11/2026

An employer can grant every day of leave an employee asks for and still violate the FMLA. The violation is in the paperwork: an eligibility notice that went out three weeks late, a designation notice that never went out at all, a PTO policy that was supposed to run concurrently but was never designated that way. The Department of Labor's regulations treat a failure to follow the notice rules as potential interference with FMLA rights, and the cost of getting them wrong is often a second block of leave the employer thought it had already granted.

This guide walks through the employer's notice sequence using the two Department of Labor forms that carry most of it: Form WH-381, the Notice of Eligibility and Rights and Responsibilities, and Form WH-382, the Designation Notice. The rules come from 29 CFR 825.300 and 825.301, which every leave administrator should read in full at least once.

The Four Notices in Order

FMLA notice obligations stack in a sequence, and each step has its own trigger.

Notice	Trigger	Timing	DOL prototype
General notice	Being a covered employer	Posted at all times; given to new hires or in the handbook if any employee is eligible	WHD Publication 1420 (poster)
Eligibility notice	Employee requests leave, or employer learns leave may be FMLA-qualifying	Within five business days, absent extenuating circumstances	WH-381
Rights and responsibilities notice	Given each time the eligibility notice is given	Same time as the eligibility notice	WH-381
Designation notice	Employer has enough information to decide whether leave qualifies	Within five business days, absent extenuating circumstances	WH-382

The forms are optional. The regulations say employers may use the DOL prototypes or another format, as long as it contains the same information. The DOL forms page also notes that the content of the optional forms remains applicable regardless of the expiration date printed on them, which matters because the OMB control date on a downloaded form is often in the past. What is not optional is the content and the timing. Download current versions from the Wage and Hour Division's FMLA forms page rather than reusing a copy saved years ago.

The General Notice: Before Anyone Asks

Every covered employer must post a notice explaining the Act and how to file a complaint with the Wage and Hour Division, in conspicuous places where employees and applicants can see it, even if no employee is currently eligible. Electronic posting satisfies the requirement if it otherwise meets the rules. Willful failure to post can draw a civil money penalty for each separate offense; the amount is adjusted for inflation and published in the regulation.

If the employer has any eligible employees, the general notice must also go into the handbook or other written leave and benefit guidance, or, if there is no such material, be handed to each new employee at hire. Where a significant portion of the workforce is not literate in English, the general notice must be provided in a language they read, and the same translation obligation carries over to the eligibility and rights notices.

Form WH-381: Eligibility and Rights and Responsibilities

When the clock starts

The five-business-day clock does not wait for the employee to say "FMLA." Under 29 CFR 825.300(b) it starts when the employee requests FMLA leave or when the employer acquires knowledge that the leave may be for an FMLA-qualifying reason. An employee who calls in and says they will be out for a week after surgery has given the employer that knowledge. Under 825.301(b), employees do not need to expressly assert FMLA rights or even mention the Act; they need to state a qualifying reason.

Practical consequence: supervisors are often the first to hear about a qualifying absence, and their knowledge can be attributed to the employer. A leave program needs a rule that supervisors forward any medical, family-care or military-related absence to HR the same day.

What the eligibility part must say

The notice must state whether the employee is eligible. If not, it must give at least one reason, such as the months of employment, the hours of service in the past 12 months, or whether the employee works at a site with 50 or more employees within 75 miles. Eligibility notification can be oral or written, but using the written WH-381 is the defensible choice.

Eligibility is determined at the start of the first instance of leave for each qualifying reason in the 12-month period. All absences for the same reason in that period are treated as a single leave, so eligibility for that reason does not change mid-year. A new reason triggers a new look: if eligibility has not changed, no new eligibility notice is needed; if it has (for example the employee no longer meets the hours test, or the worksite dropped below 50 employees), the employer must notify the employee of the change within five business days.

What the rights and responsibilities part must say

The rights and responsibilities notice must be written and must be given every time an eligibility notice is given. If leave has already begun, it should be mailed to the employee's address of record. It must include, as applicable:

That the leave may be designated and counted against the FMLA entitlement, and the 12-month period the employer uses
Any requirement to provide certification, and the consequences of not doing so
The employee's right to substitute paid leave, whether the employer will require substitution, the conditions attached, and the employee's right to unpaid FMLA leave if they do not meet those conditions
Any requirement to make premium payments to maintain health benefits, how to make them, and the consequences of not paying on time
Key employee status, if applicable, and the possibility that restoration may be denied
The right to maintenance of benefits and restoration to the same or an equivalent job
Potential liability to repay employer-paid health premiums if the employee does not return from leave

The notice may also say whether the employer will require periodic status reports, and it may be accompanied by the certification form. If any of the information changes, the employer must give written notice of the changes within five business days of the employee's first notice of need for leave after the change. The regulation's example: the first leave was paid and the next one will be unpaid, so the premium payment arrangements now matter.

Payroll's stake in WH-381

Three of those items are payroll decisions, and the notice is where they get communicated. If the employer will require PTO substitution, the WH-381 has to say so. If unpaid leave will interrupt the employee's health premium deduction, the WH-381 has to explain how the employee pays instead. Under 29 CFR 825.210 the employer can require payment on the same schedule as a payroll deduction, on the COBRA schedule, by prepayment through a cafeteria plan at the employee's option, under existing leave-without-pay rules (without requiring prepayment), or under another system the employee voluntarily agrees to, and it cannot add an administrative charge. Our cafeteria plans guide covers the prepayment mechanics, and our voluntary deduction authorization guide covers recovering arrears from later wages.

Form WH-382: The Designation Notice

When to designate

Under 29 CFR 825.300(d), the employer is responsible in all circumstances for designating leave as FMLA-qualifying. Once it has enough information to decide whether the leave qualifies, often after receiving a complete certification, it must notify the employee within five business days whether the leave will be designated and counted as FMLA leave. If the employer has enough information the moment the employee asks, it can designate immediately.

Only one designation notice is needed for each qualifying reason per 12-month period, whether the leave is continuous, intermittent or on a reduced schedule. The designation notice must be in writing. If the leave does not qualify, or the entitlement is exhausted, the employer must still tell the employee; a simple written statement is enough.

What WH-382 must cover

Whether the leave is designated as FMLA leave
Whether the employer is requiring paid leave to be substituted, or counting paid leave taken under an existing plan (such as a disability plan) as FMLA leave. The regulation says the employee must be told this at the time of designation
Whether a fitness-for-duty certification will be required to return, and whether it must address the employee's ability to perform the essential functions of the job. If it must, the designation notice must include a list of those essential functions
The amount of leave counted against the entitlement in hours, days or weeks, if known

If the amount is not known (unforeseeable intermittent leave), the employer must provide it on the employee's request, no more than once in 30 days and only if leave was taken in that period. That notice can be oral but must be confirmed in writing by the next payday, and the regulation allows the confirmation to be a pay stub notation.

If anything in the designation notice changes, for example the employee exhausts the entitlement, the employer must give written notice of the change within five business days of the employee's first notice of need for leave after the change.

You cannot hold designation in reserve

A recurring temptation is to let an employee use PTO first and designate FMLA only after the paid leave runs out, which effectively extends total leave. In opinion letter FMLA2019-1-A, the Wage and Hour Division said an employer may not delay designating FMLA-qualifying leave, even if the employee would prefer the delay, and may not designate more than 12 weeks (26 for military caregiver leave) as FMLA leave. Some courts have taken a different view of whether an employee can decline FMLA designation, so where this question is live, get advice for your jurisdiction. The safe administrative rule is the DOL's: once you have enough information, designate.

Designating Paid Leave to Run Concurrently

The hub question behind most WH-382 problems is concurrency. FMLA leave is unpaid. Under 29 CFR 825.207, an employee may choose, or the employer may require, that accrued paid leave run concurrently with it. Four rules govern how that works on the notices.

It has to be announced twice. The rights and responsibilities notice (WH-381) states whether substitution will be required. The designation notice (WH-382) applies it to this leave. An employer that requires substitution in its handbook but never says so in the notices has a weak position if the employee later claims their PTO was not supposed to count.

The paid leave policy's own conditions still apply. Substitution is governed by the employer's normal leave policy. If the PTO policy requires a call-in procedure or a minimum increment, the employee must meet those conditions to be paid. But the employer must tell the employee that those conditions apply only to receiving pay. An employee who does not meet them loses the pay, not the FMLA protection.

Disability plan and workers' compensation leave is designated, not substituted. Leave under a disability benefit plan or a workers' compensation absence can be designated as FMLA leave and counted against the entitlement if it meets the serious health condition criteria. Because that leave is not unpaid, neither the employer nor the employee can require substitution of accrued paid leave. They may agree, where state law permits, to use paid leave to supplement a partial benefit. The designation notice should say the leave is being counted as FMLA leave and say what, if anything, has been agreed about supplementing. Our FMLA, ADA and workers' comp overlap guide covers the workers' comp side in more detail.

State paid leave benefits follow the same logic. In opinion letter FMLA2025-01-A, the Wage and Hour Division applied the disability-plan reasoning to state paid family and medical leave programs: when the employee is receiving state program benefits the leave is not unpaid, so substitution cannot be required, though the parties can agree to supplement. Check your state's program rules on supplementation before agreeing to it; our state paid family leave roundup lists the programs.

Late or Missing Notices

Under 29 CFR 825.301(d), an employer that did not designate on time may designate retroactively, with appropriate notice, provided the delay did not cause the employee harm. The employer and employee can also mutually agree to retroactive designation where the leave qualifies. Where a late designation does cause harm, it may be interference, and the employer may be liable for lost compensation and benefits, other actual monetary losses and equitable relief.

The regulation's example of harm is instructive: an employee who took leave to care for a child, not knowing it would count, and who would have arranged another caregiver to save leave for a spouse's planned surgery. By contrast, an employee whose own condition kept them off work regardless may be unable to show harm. Harm is fact-specific; prevention is cheaper.

Build these controls into the workflow:

A notice log with the date the employer gained knowledge, the date WH-381 went out, the date certification arrived, and the date WH-382 went out
A five-business-day tickler from each trigger date
A rule that any absence over three consecutive days, or any intermittent pattern with a medical reason, gets an FMLA review
A documented note whenever a notice goes out late, stating the extenuating circumstances
Retention of copies of every notice for at least three years under 29 CFR 825.500

Frequently Asked Questions

What is Form WH-381 used for?

Form WH-381 is the Department of Labor's optional prototype for two notices an employer must give when an employee requests FMLA leave or the employer learns leave may be FMLA-qualifying: the eligibility notice and the rights and responsibilities notice. It tells the employee whether they are eligible (and if not, why), what the employer expects of them, whether certification is required, whether paid leave substitution will be required, and how health premiums will be paid during leave. It must generally be provided within five business days.

Is the WH-381 the same as the designation notice?

No. WH-381 is sent at the start of the process and covers eligibility and the employee's rights and responsibilities. WH-382, the designation notice, is sent once the employer has enough information to decide whether the leave qualifies, often after the certification comes back. WH-382 tells the employee whether the leave counts as FMLA leave, how much will be counted if known, whether paid leave is being substituted, and whether a fitness-for-duty certification will be required to return.

How long does an employer have to send the FMLA designation notice?

Five business days after the employer has enough information to determine whether the leave is for an FMLA-qualifying reason, absent extenuating circumstances. That information usually arrives with the medical certification. If the employer has enough information when the employee first asks, it can designate immediately. The designation notice must be in writing, and only one is needed for each qualifying reason in a 12-month period, even if the leave is intermittent.

Do employers have to use the DOL forms WH-381 and WH-382?

No. The forms are optional prototypes. An employer can use its own versions, provided they contain at least the same information the regulations require. Many employers adapt the forms to add their own policy details, such as the PTO substitution rules or premium payment instructions. What cannot change is the required content, the five-business-day timing, the written-notice requirement for designation and the translation obligation where it applies.

Can FMLA leave be designated retroactively?

Yes, with appropriate notice, as long as the late designation does not cause harm or injury to the employee. The employer and employee can also agree to a retroactive designation where the leave qualifies. If the failure to designate on time does harm the employee, for example by denying them the chance to plan around their remaining entitlement, it may be treated as interference, with liability for lost compensation, other monetary losses and equitable relief.

Can an employer require an employee to use PTO during FMLA leave?

Generally yes, under the terms of the employer's normal paid leave policy, provided the requirement is stated in the rights and responsibilities notice and applied in the designation notice. The employee only has to meet the policy's procedural conditions to get paid; failing them costs the pay, not the FMLA protection. The exception is leave already paid through a disability plan, workers' compensation or, per DOL guidance, a state paid leave program: substitution cannot be required then, though the parties may agree to supplement.

Training for the People Who Send the Notices

Notice timing errors are process errors, and they recur until someone owns the process. The Certified Leave Administrator program is the credential path for HR and payroll staff who run that process. For teams that need broader coverage of federal, state and company leave layers together, see the Leave Management Compliance Suite.

Log the date you learned of every qualifying absence, send WH-381 within five business days, designate with WH-382 as soon as you have enough information, and say in writing exactly which paid leave is running alongside the FMLA clock.