Form WH-382 - Designation Notice Required?

Question

If an employee is not eligible for FMLA leave is the employer required to provide the WH-382 form (Designation Notice)?

Answer

Employers are not required to use the federal Family and Medical Leave Act (FMLA) Designation Notice (Form WH-382) published by the Department of Labor, but leave covered under the act must be designated as FMLA-protected and the employer must inform the employee in writing of the amount of leave that will be counted against the employee’s FMLA leave entitlement.

If an employee is not FMLA-eligible, the employer can indicate this on the Notice form by checking next to the lines that read "Your FMLA Leave request is Not Approved" and "The FMLA does not apply to your leave request." In cases where an employee's ineligibility is because they have already taken all available leave under the Act in a 12-month period, the employer also checks next to the line that reads: "You have exhausted your FMLA leave entitlement in the applicable 12-month period." The employer should retain a copy of any Designation Notice provided to an employee (whether or not FMLA is designated, as the case may be) and retain it in its records for three years (ideally in a confidential file separate from the personnel file).

While use of Form WH-382 is optional, it provides an easy method of providing employees with the written information required by 29 C.F.R. §§ 825.300(c), 825.301, and 825.305(c)." These sections of the FMLA Regulations govern employer notice requirements, designation and certification, respectively, and we invite you to review them at the Electronic Code of Federal Regulations; Part 825 – The Family and Medical Leave Act of 1993.

We recommend that in all cases where an employee seeks or directly or even indirectly requests leave under the FMLA, the employer provide him or her with the Designation Notice WH-382. The Regulations state that this should be done “once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason” (see Employer Notice Requirements).

Want to know more? Listen to our podcast on the use of the WH-382 Designation Notice.

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Published Date:January 21, 2020

Categories: HR Question of the Month