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Home/Blog/WH-381 vs WH-382: FMLA Notice Requirements & HR Compliance Guide (2026)
FMLAJul 22, 2026 09:19by AI SoloHR Compliance & Editorial Team5 min read

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.

#FMLA#WH-381#WH-382#WH-381 vs WH-382#FMLA Notice#HR Compliance#DOL Forms
Fact-Checked & Regulatory AuditVERIFIED E-E-A-T

Verified by AI SoloHR Compliance & Editorial Team (U.S. Employment Law & Regulatory Compliance Research Group)

Last Audit: Sep 8, 2026 23:13

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WH-381 vs WH-382: FMLA Notice Requirements & HR Compliance Guide (2026)

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.

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Use this checklist to organize eligibility notices, certification follow-up, designation timing, and return-to-work documentation.

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Statutory Side-by-Side Comparison: WH-381 vs. WH-382

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.

Statutory Sources & Regulatory Citations

This compliance document references official regulatory guidance from federal employment enforcement agencies:

  • U.S. Department of Labor (DOL) FMLA Regulations
  • Code of Federal Regulations (29 CFR Part 825)
  • EEOC Disability & Interactive Process Manual
  • Legal Information Institute (29 U.S.C. Chapter 28)
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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.

📌 Automate FMLA Notice Deadlines: Never miss a 5-day federal notice deadline. Track eligibility, certification intake, and designation timelines in one audit-proof dashboard using AI SoloHR (https://aisolohr.com/fmla-tracking-software).

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.

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