When an employee requests FMLA leave, or when the employer learns that an employee’s leave may be for an FMLA-qualifying reason, the employer is required to notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. The eligibility notice must state whether the employee is eligible to take leave under the FMLA, and if not, at least one reason why not. This notice may be oral or in writing. Employers may use the DOL’s combined prototype Notice of Eligibility and Rights and Responsibilities (Form WH-381) for this purpose.

If an employee provides notice of a subsequent need for FMLA leave during the same 12-month period and the employee’s status has not changed, no further eligibility notice is required.  If the employee’s status has changed, the employer must notify the employee of the change in eligibility status within five business days, absent extenuating circumstances.