Rights and Responsibilities Notice

The employer must give the employee written notice detailing the specific expectations and obligations of the employee during leave, and the consequences of failure to meet those obligations. This notice must be provided each time a Notice of Eligibility is provided. If the leave already has begun, the notice must be mailed to the employee’s address of record. This notice must include the following information:

1. That the leave may be designated and counted against the employee’s annual FMLA leave entitlement and the applicable 12-month period;
2. Any certifications the employer requires, such as certification of a serious health condition, serious injury or illness, or qualifying exigency, and the consequences of failure to provide these;
3. The employee’s right to substitute paid leave, whether the employer will require the employee to take paid leave, the conditions related to any substitution of paid leave, and the employee’s entitlement to take unpaid leave if the employee does not meet the requirements for paid leave under the employer’s paid leave policies;
4.  Any requirements for the employee to make any insurance premium payments and the consequences of failure to make these payments timely;
5. Whether the employee is a “key employee” and explaining the potential consequence that restoration may be denied;
6. The employee's rights to maintenance of benefits during the FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave; and
7. The employee’s potential liability for payment of any health insurance premiums paid by the employer if the employee fails to return to work after the leave.

29 C.F.R. § 825.300.

The Notice of Rights and Responsibilities may, but is not required to, contain other information, such as whether the employer requires periodic reports of the employee’s status and intent to return to work. This Notice should be accompanied by any certification forms that are required.

Employers may use the DOL’s combined prototype Notice of Eligibility and Rights and Responsibilities (Form WH-381) for this purpose. While use of this prototype is not required, it is strongly recommended that employers use it to ensure that all required information is provided. This notice also may be distributed electronically.