Appendix C: Employer Response to Employee Request for FMLA
Employer Response to Employee Request for FMLA (29 CFR §825.300)
The employer may use the U.S. Department of Labor Optional Form WH-381 “Notice of Eligibility and Rights & Responsibilities” and Form WH-382 “Designation Notice to Employee of FMLA Leave.”
These employer notices should be provided to the employee within five business days after receiving the employee’s notice of need for leave and include the following:
- state whether or not the employee is eligible for FMLA and if not must state at least one reason why not;
- that the leave will be counted against the employee’s annual FMLA leave entitlement;
- any requirements for the employee to furnish certification of a serious health condition, serious illness or injury or qualifying exigency and the consequences of failing to do so;
- the employee’s right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave;
- any requirement for the employee to make co-premium payments for maintaining group health insurance and the arrangement for making such payments;
- any requirement to present a fitness-for-duty certification before being restored to his/her job;
- rights to job restoration upon return from leave;
- employee’s potential liability for reimbursement of health insurance • premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and
- whether the employee qualifies as a “key” employee and the • circumstances under which the employee may not be restored to his/her job following leave.