New FMLA Forms for an Employee’s Own Serious Health Condition

The U.S. Department of Labor has updated its Family and Medical Leave Act (“FMLA”) forms.  The forms are not required but they are good resources to use since they include all of the information required by the FMLA.  Additional information and additional forms or notices may be required, however, for state and local leave.  The following is a brief overview of the forms that are used for an employee who is taking FMLA leave for his or her own serious health condition, with links to the forms online.  There are different forms to use when an employee takes FMLA leave to care for a family member or takes leave related to a service member.

 WH-381: FMLA Notice of Eligibility and Rights & Responsibilities. WH-381 Form & Instruction.  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.

WH-380-E: FMLA Certification of Health Care Provider for Employee’s Serious Health Condition. WH-380-E Form & Instruction.  This is the form that the employer gives to the employee to give to his or her health care provider.  The employer should not directly give the form to the employee’s care provider because it requests confidential health information that the care provider cannot directly release to the employer without the employee’s consent.

On the Form WH 380-E, the employer fills out Section I, the employer or the employee can fill out Section II (which is just the employee’s name), and the care provider fills out Section III.  In Section I, where it says “essential job functions,” the employer can either list them or put “see attached” and attach them.  If there is a job description, I recommend that the employer check the box that says, “Check if job description is attached” and then attach it even if the employer has also listed the essential functions of the position.

WH-382 FMLA Designation Notice. WH-382 Form & Instruction.  This is the form the employer fills out after the employee returns the Certification of Health Care Provider.  How the employer fills out this form depends on the information on the Certification of Health Care Provider and on the employer’s policies.  For example, does the employer run FMLA leave concurrently with some or all other paid leave, or is it consecutive, or a mix of the two?  I recommend that the employer attach a list of essential functions to this form and require a fitness for duty certificate to ensure that the employer is ready to return to work at the end of the FMLA leave period.

The Form WH-382 also contains a section for the employer to fill out if there is a problem with the Certification of Health Care Provider, such as if the care provider does not answer all of the questions or the answers are vague or confusing.

The final section of the Form WH-382 is to be used by the employer if FMLA leave is not approved.  There are a limited number of circumstances under which leave can be denied, so it is a good idea to seek legal counsel before denying a leave request.

This posting does not have enough detail to answer all FMLA eligibility questions, and it does not constitute legal advice.  The FMLA regulations provide the reasoning behind the forms and have a lot more detail about FMLA eligibility.  It may be helpful to review the regulations or seek legal assistance prior to filling out the forms.

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