Form WH-380-E: PDF Download & Line-by-Line Guide
The authoritative compliance manual for reviewing the U.S. Department of Labor Certification of Health Care Provider for Employee’s Serious Health Condition. Master 15-day return clocks, mandatory 7-day cure protocols, GINA safe harbor warnings, second opinion rights, and anti-fraud verification.
What is Form WH-380-E and Why Is It Legally Critical?
Form WH-380-E is the official medical certification issued by the Wage and Hour Division of the U.S. Department of Labor. It serves as the primary statutory mechanism under 29 U.S.C. § 2613 allowing employers to verify that an employee requesting FMLA leave actually suffers from a statutory "serious health condition" that incapacitates them from performing their essential job duties.
Without a properly executed WH-380-E, HR teams face an impossible choice: approve unverified absences and risk widespread attendance abuse, or deny the leave and invite an expensive federal FMLA interference or retaliation lawsuit.
Form WH-380-E Line-by-Line Employer Audit Checklist
Review each section against statutory standards before issuing an approval designation notice (Form WH-382).
| Form Section | Responsible Party | Statutory Elements | Common Employer Danger Point |
|---|---|---|---|
| Section I: Part A & B | Completed by Employer / HR | Employee full name, job title, regular work schedule, essential job duties attachment. | Failing to attach a written job description means the doctor assesses incapacity based solely on employee verbal testimony. |
| Section II: Medical Facts | Completed by Healthcare Provider | Date condition began, probable duration, hospitalization dates, continuing treatment regimen. | Doctor fails to confirm whether employee is unable to perform one or more essential job functions. |
| Section III: Intermittent Need | Completed by Healthcare Provider | Estimated frequency (e.g. times per month) and duration (e.g. hours or days per episode). | Writing 'as needed' or 'as tolerated'. These are legally incomplete and trigger mandatory 7-day cure notices. |
| Section III: Planned Treatments | Completed by Healthcare Provider | Scheduled appointments, therapy dates, follow-up recovery periods. | Failing to note whether treatment schedule can be arranged to minimize business disruption. |
Detailed Review Instructions: Sections I, II, and III
SECTION I: Employer Notice & Essential Functions Attachment
Before handing Form WH-380-E to an employee, the employer MUST complete Section I. You must indicate the employee's job title, regular work schedule, and attach a formal job description outlining their essential physical and mental functions.
SECTION II: Medical Facts & Incapacity Standard
The healthcare provider must state the date the condition commenced, probable duration, and whether the condition caused inpatient hospitalization, pregnancy disability, chronic serious health condition, or incapacity exceeding three consecutive full calendar days with continuing treatment.
SECTION III: Intermittent Leave & Frequency/Duration Estimates
The healthcare provider must provide their best medical estimate of: (1) Episode frequency (e.g. 1-2 times per month); (2) Episode duration (e.g. 1-2 days per episode); and (3) Planned appointments. Phrases like "as needed" or "as tolerated" are legally defective.
The Mandatory 7-Day Cure Notice: What to Do When a Doctor Writes "As Needed"
If a certification arrives with unanswered questions, illegible handwriting, or vague statements like "leave as needed," you cannot deny leave immediately! Under 29 CFR § 825.305(c), you must issue a written notice identifying the exact missing details and grant at least 7 calendar days to cure the deficiency.
"Dear [Employee Name],
We received your medical certification form (WH-380-E) dated [Date]. Upon review, the form is incomplete or insufficient in the following respect:
- In Section III, Question 8, the healthcare provider stated 'intermittent as needed' but did not provide an estimated frequency (e.g., number of times per week/month) or duration (e.g., hours or days per episode).
Pursuant to 29 CFR § 825.305(c), you are hereby given seven (7) calendar days—until [Date 7 days later]—to return a corrected and cured certification from your healthcare provider. If you fail to submit this necessary clarification, your leave request cannot be approved as FMLA-protected and absences will be subject to our standard attendance policy."
Second and Third Opinions: When Can Employers Challenge a Doctor’s Note?
1. Initial Certification
Employee submits WH-380-E from their treating physician. If the employer has a good-faith reason to doubt the validity of the certification, they may require a second opinion under 29 CFR § 825.307.
2. Second Opinion
Employer designates a doctor (who cannot be regularly employed or retained by the employer). Employer must pay 100% of all medical examination costs and reasonable travel expenses.
3. Binding Third Opinion
If the first and second opinions conflict, the employer and employee jointly select a third healthcare provider. The third opinion is final and binding on both parties. The employer pays all costs.
Dealing with Suspected Pattern Abuse: Friday/Monday Absences
Under 29 CFR § 825.308(c)(2), employers have a specific legal remedy when an employee on intermittent leave exhibits suspicious absence patterns—such as taking leave exclusively on Fridays and Mondays or immediately adjacent to paid company holidays.
In such cases, the employer is legally permitted to request recertification sooner than the standard 30-day window. The employer may provide the healthcare provider with an objective record of the employee’s absence patterns and ask if the serious health condition and need for leave are consistent with such patterns.
Mandatory GINA Warning (Genetic Information Nondiscrimination Act)
Every time an employer distributes Form WH-380-E, they should include the EEOC's official GINA Safe Harbor language (29 CFR Part 1635). This warning protects the company if a doctor inadvertently sends genetic or family medical history:
Frequently Asked Questions: Form WH-380-E
Can an employer reject Form WH-380-E if the physician refuses to provide a specific diagnosis?
No! Under 29 CFR § 825.306(a)(4), a medical certification only requires appropriate medical facts regarding the condition (such as symptoms, hospitalization, doctor visits, and specialized treatment). The form does NOT require a specific medical diagnosis or ICD-10 code. In fact, in jurisdictions like California (CFRA), demanding a specific diagnosis violates state privacy laws.
What should HR do if Section III (Intermittent Leave) is vague or states 'as needed'?
If a physician writes 'intermittent as needed' or 'flare-ups as tolerated' without specifying an estimated frequency and duration (e.g., '1-2 episodes per month lasting 1-2 days per episode'), the certification is legally incomplete. The employer must provide a written notice of deficiency and give the employee at least 7 calendar days to cure the defect under 29 CFR § 825.305(c).
Can a manager call the doctor to verify if the note is real?
No! Under 29 CFR § 825.307, frontline supervisors and managers are strictly barred from contacting an employee's doctor. Only a human resources professional, leave administrator, or healthcare professional may contact the provider, and solely for authentication (confirming the doctor signed it) or clarification (understanding illegible handwriting).
Who pays for second and third medical opinions under the FMLA?
Under 29 CFR § 825.307, the employer must pay 100% of the cost for any second or third medical opinions, including reasonable employee travel expenses. The second healthcare provider cannot be regularly employed or contracted by the employer.
How often can an employer request recertification under Form WH-380-E?
Under 29 CFR § 825.308, an employer may request recertification no more often than every 30 days in connection with an absence, unless the certification specifies a minimum duration longer than 30 days (in which case the employer must wait until that minimum period expires, up to 6 months). Recertification can be requested sooner if circumstances change significantly or the employer receives information that casts doubt upon the continuing validity of the leave.
What happens if an employee fails to return Form WH-380-E within 15 calendar days?
If an employee fails to return the certification within 15 calendar days despite having received proper written notice of the deadline (and cannot prove that diligent good-faith efforts were made), the employer may legally delay the start of FMLA protection or deny the leave altogether. Any absences prior to the receipt of certification may be treated as unexcused under the company's standard attendance policy.
Automate Medical Certifications & 15-Day Deadlines
Never miss a 15-day certification window or 7-day cure period. AI SoloHR automatically tracks return deadlines, logs intermittent absence patterns, and safeguards HIPAA/GINA compliance.
Start Your 14-Day Free Trial
Experience full platform capabilities, automate compliance tracking, and eliminate spreadsheet errors. No credit card required.
- 14-day full platform access
- Up to 3 active cases
- Up to 30 employee records
- All 7 U.S. case types unlocked