[Editor's note: On June 26, 2013, the U.S. Supreme Court, in United States v. Windsor, found unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which had prohibited the federal government from acknowledging marriages between same-sex couples. In accordance with this ruling, same-sex spouses are now considered ‘spouses’ under federal law if they are ‘spouses’ under state law, all federal laws and regulations that include spouses include the broader same-sex definition in those states where same-sex marriage is legal. FMLA refers to state law for the definition of ‘spouse.’ However, since the court did not consider Section 2 of DOMA, states still have the right not to recognize same-sex marriages originating in other states or territories.]
(Family and Medical Leave Act)
U.S. Department of Labor
Wage and Hour Division
Leave covered under the Family and Medical Leave Act (FMLA) must be designated as FMLA-protected and the employer must inform the employee of the amount of leave that will be counted against the employee’s FMLA leave entitlement. In order to determine whether leave is covered under the FMLA, the employer may request that the leave be supported by a certification. If the certification is incomplete or insufficient, the employer must state in writing what additional information is necessary to make the certification complete and sufficient. While use of this form by employers is optional, a fully completed Form H-382 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).
We have reviewed your request for leave under the FMLA and any supporting documentation that you have provided.
We received your most recent information on and decided:
_____ Your FMLA leave request is approved. All leave taken for this reason will be designated as FMLA leave.
The FMLA requires that you notify us as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown. Based on the information you have provided to date, we are providing the following information about the amount of time that will be counted against your leave entitlement:
_____ Provided there is no deviation from your anticipated leave schedule, the following number of hours, days, or weeks will be counted against your leave entitlement: ________________________
_____ Because the leave you will need will be unscheduled, it is not possible to provide the hours, days, or weeks that will be counted against your FMLA entitlement at this time. You have the right to request this information once in a 30-day period (if leave was taken in the 30-day period).
Please be advised (check if applicable):
_____ You have requested to use paid leave during your FMLA leave. Any paid leave taken for this reason will count against your FMLA leave entitlement.
_____ We are requiring you to substitute or use paid leave during your FMLA leave.
______You will be required to present a fitness-for-duty certificate to be restored to employment. If such certification is not timely received, your return to work may be delayed until certification is provided. A list of the essential functions of your position ___ is ___ is not attached. If attached, the fitness-for-duty certification must address your ability to perform these functions.
_____ Additional information is needed to determine if your FMLA leave request can be approved:
_____ The certification you have provided is not complete and sufficient to determine whether the FMLA applies to your leave request. You must provide the following information no later than ______________________________, unless it is not practicable under the particular circumstances despite your diligent good faith efforts, or your leave may be denied.
(Specify information needed to make the certification complete and sufficient)
_____ We are exercising our right to have you obtain a second or third opinion medical certification at our expense, and we will provide further details at a later time.
_____ Your FMLA Leave request is Not Approved.
_____The FMLA does not apply to your leave request.
_____You have exhausted your FMLA leave entitlement in the applicable 12-month period.
PAPERWORK REDUCTION ACT NOTICE AND PUBLIC BURDEN STATEMENT. It is mandatory for employers to inform employees in writing whether leave requested under the FMLA has been determined to be covered under the FMLA. 29 U.S.C. § 2617; 29 C.F.R. §§ 825.300(d), (e). It is mandatory for employers to retain a copy of this disclosure in their records for three years. 29 U.S.C. § 2616; 29 C.F.R. § 825.500. Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. The Department of Labor estimates that it will take an average of 10 – 30 minutes for respondents to complete this collection of information, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. If you have any comments regarding this burden estimate or any other aspect of this collection information, including suggestions for reducing this burden, send them to the Administrator, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Ave., NW, Washington, DC 20210. DO NOT SEND THE COMPLETED FORM TO THE WAGE AND HOUR DIVISION.