WH-381 vs WH-382: FMLA Notice Requirements & HR Compliance Guide (2026)
A comprehensive compliance comparison between DOL Form WH-381 and WH-382. Learn when to issue each notice, field-by-field entry examples, mandatory attachments, and how to avoid FMLA interference claims.
For U.S. employers and small-business HR teams.
Verified by AI SoloHR Compliance & Editorial Team (U.S. Employment Law & Regulatory Compliance Research Group)
Executive Overview: Navigating Mandatory FMLA Employer Notices
Under federal FMLA regulations (29 CFR § 825.300), employers are required to issue two primary written notices whenever an employee requests leave or when HR learns of a potential FMLA-qualifying absence. Form WH-381 (Notice of Eligibility and Rights & Responsibilities) and Form WH-382 (Designation Notice) serve completely distinct statutory purposes in the leave lifecycle.
Confusing Form WH-381 with WH-382 or failing to adhere to the 5-business-day issuance rule is one of the leading causes of DOL FMLA interference complaints. This guide breaks down exact statutory differences, field-by-field HR completion examples, issuance timelines, and mandatory attachments.
📌 Official DOL Notice PDF Downloads: Direct downloads: Access official Form WH-381 PDF (https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-381.pdf) and official Form WH-382 PDF (https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-382.pdf) directly from the U.S. Department of Labor.
Statutory Side-by-Side Comparison: WH-381 vs. WH-382
Compliance Factor | Form WH-381 (Notice of Eligibility) | Form WH-382 (Designation Notice) |
|---|---|---|
Primary Statutory Purpose | Informs employee if they meet basic statutory eligibility (12 mos / 1,250 hrs / 50 employees). | Informs employee whether the requested leave is officially designated and counted as FMLA leave. |
Issuance Trigger | Issued within 5 business days after employee requests leave or HR learns of qualifying absence. | Issued within 5 business days after HR receives complete medical certification (WH-380). |
Mandatory Attachments | Medical Certification (WH-380-E or WH-380-F) & Rights/Responsibilities summary. | Fitness-for-Duty requirement notice and job description (if return clearance required). |
Legal Protection Status | Does NOT approve FMLA leave; strictly confirms statutory eligibility. | OFFICIALLY APPROVES, DENIES, or requests additional information for FMLA leave. |
Intermittent Substitution | Outlines paid leave substitution rules (PTO/Sick leave policies). | Specifies exact hours deducted and fitness for duty requirements per episode. |
Form WH-381 HR Completion Field Example
Section I of Form WH-381 requires HR to verify statutory eligibility before issuing the form within 5 business days of the leave request:
Form WH-381 Field | HR Verification Entry Example | Statutory Rule & Compliance Audit Notes |
|---|---|---|
12 Months Service Check | ✅ Employee has met the 12-month tenure requirement. | Must have worked for employer for at least 12 months (need not be consecutive). |
1,250 Work Hours Check | ✅ Employee has worked 1,320 hours in preceding 12 months. | Must have actual worked hours (PTO/holiday hours do not count toward 1,250 threshold). |
50/75 Employee Radius Check | ✅ Employee works at location with 50+ staff within 75 miles. | Includes remote employees mapped to their designated reporting office. |
Certification Required | ✅ Attached Form WH-380-E (Employee Medical Certification). | Must specify which certification form is required and grant 15 calendar days to return. |
Paid Leave Substitution | ✅ Paid PTO will be substituted for unpaid FMLA leave per policy. | HR must inform employee if company policy requires substituting accrued paid leave. |
Form WH-382 HR Completion Field Example
Form WH-382 is issued after HR reviews returned medical certifications to officially designate FMLA leave:
Form WH-382 Field | HR Designation Entry Example | Statutory Rule & Compliance Audit Notes |
|---|---|---|
Designation Status | ✅ Leave is APPROVED and designated as FMLA leave. | Must check Approved, Incomplete (with 7-day cure notice), or Denied. |
Hours Counted Against Cap | 480 total hours (12 workweeks based on 40 hr/week schedule). | HR must state exact hours, days, or weeks counted against 12-week entitlement. |
Fitness-for-Duty Requirement | ✅ Fitness-for-Duty Certificate REQUIRED prior to return. | MUST be checked on WH-382 at initial designation to legally enforce return clearance. |
Essential Job Duties Notice | ✅ Attached written job description for physical clearance. | If fitness-for-duty requires clearance on essential functions, job description MUST be attached. |
The 5-Step HR Notice Workflow Roadmap
Step 1: Employee requests leave or reports 3+ days of incapacitating absence.
Step 2: HR audits eligibility and issues Form WH-381 + WH-380 within 5 business days.
Step 3: Employee returns completed medical certification within 15 calendar days.
Step 4: HR reviews certification for completeness (if incomplete, grant 7-day cure period).
Step 5: HR issues Form WH-382 Designation Notice within 5 business days of receiving complete certification.
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10 PAA Compliance FAQs: WH-381 vs. WH-382
Q1: Can WH-381 and WH-382 be issued at the exact same time? Answer: Yes, only if HR already possesses complete medical certification at the initial request.
Q2: What happens if HR misses the 5-day WH-381 deadline? Answer: Late notices can constitute FMLA interference if the delay causes harm or deprives the employee of rights.
Q3: Does issuing WH-381 mean the leave is approved? Answer: No. WH-381 only confirms eligibility; WH-382 is required to officially designate and approve leave.
Q4: Must HR reissue WH-381 every year? Answer: HR must issue a new WH-381 for the first FMLA absence in each 12-month leave year.
Q5: What if medical certification is deficient when issuing WH-382? Answer: HR marks Form WH-382 as 'Incomplete or Insufficient' and specifies missing items with a 7-day cure deadline.
Q6: Is a Fitness-for-Duty certificate required on WH-382? Answer: Yes, if the employer requires return-to-work medical clearance, it MUST be specified on WH-382 when designated.
Q7: How are paid leave substitution rules communicated? Answer: Paid leave substitution terms must be detailed in Section II of Form WH-381.
Q8: Must WH-382 state the exact number of hours deducted? Answer: Yes, HR must state the number of hours, days, or weeks counted against the 12-week entitlement if known.
Q9: How long must WH-381 and WH-382 records be retained? Answer: Employers must retain copies of all issued FMLA notices for at least 3 years.
Q10: Are electronic email notices legally valid for WH-381 and WH-382? Answer: Yes, electronic delivery is valid provided employees have regular email access and receipt is verifiable.
Sources and review notes
This article is written for U.S. small-business HR teams in 2026 and should be checked against your own policy, state requirements, and counsel guidance before use in a contested employment decision. AI SoloHR provides workflow structure, reviewed drafting support, and educational resources; it does not provide legal advice or make final employment decisions.
This compliance document references official regulatory guidance from federal employment enforcement agencies:
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