FMLA Procedure for Paperwork Has Changed
Last week, a federal appellate court took a sledgehammer to the mailbox rule (mailing a letter during the normal course of business are deemed received by the addressee), finding it to be a relatively weak indicator that the addressee actually received the correspondence sent to the employee. As a result, employers and third party administrators responsible for sending these notices are left wondering whether notice by U.S. mail is acceptable anymore. Apparently it is not!
The employee worked for a College an as instructor. During the relevant time period, she was dealing with some personal issues and, as it turns out, she was battling depression. Her boss encouraged her to take some personal leave. The employee agreed, and she completed a leave of absence request form seeking “personal leave.” A short time later, the employee provided complete FMLA medical certification to the College supporting her need for leave. As a result, the College properly converted her request for “personal leave” into one for FMLA leave, and it sent by U.S. mail the appropriate FMLA notices designating her absence as such.
The employee required a leave from December through mid-March, which was 14 weeks later. Several weeks thereafter, the employee provided documentation from her physician fully releasing her to return to work. By this point, however, the College told her she no longer had a job because she didn’t return to work after her 12 weeks of FMLA leave expired.
The employee claimed she never received any paperwork that it was a FMLA and sued the College alleging that it violated the FMLA when it failed to give her notice that her absence was covered by the FMLA.
The issue of whether the employee received the FMLA notices was central to her FMLA lawsuit. According to the court, if the College could show that the employee actually received its FMLA correspondence, her FMLA claims would fail.
The court then analyzed the strength of different forms of notice. Certified mail, for example, offers a “strong presumption” of receipt by the addressee. Regular mail, however, assures only a “weaker presumption.” The court determined that this “weaker” presumption is nullified whenever the addressee’s denies receipt of the mailing.
Think about that: a letter is not considered delivered by regular U.S. Mail whenever the addressee proclaims he or she did not receive it. And here, the employee’s denial allowed her the opportunity to submit her FMLA claims to a jury.
In its reasoning, the court explained what kind of delivery should be required in today’s day and age:
In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.
Insights for Employers
I fear this decision is a bit of a game changer when it comes to confirming that an employee actually has received FMLA notice. And it poses a very real and costly problem for employers and TPAs. Let’s face it — employees regularly claim they failed to receive a notice given to them or sent to them in the U.S. mail. In nearly every Plaintiff’s deposition I take, they deny receiving some kind of notice from their employer. Now, they can defeat summary judgment simply by denying that they failed to receive an FMLA notice sent by regular mail?
Disagree as we might with this decision, what do we learn from it?
1. If you hand-deliver the notices to an employee, have the employee sign and date a receipt for the documents.
2. If you mail, send via a method that permits you to track the delivery whether it is certified mail with a green card return, or an express delivery service with a tracking number.
3. If you email, click the box on Outlook that will send a delivery notice upon receipt. This decision also is a reminder of what not to do when FMLA leave ends.
On another note, what else did the College do wrong? First, it
insisted that the employee return without restrictions. This case now changes the game. Be careful moving forward that requiring an employee to return without restrictions could be an ADA problem depending on the type of leave. Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work. Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.
We send our FMLA letters by Certified Mail/Return Receipt as well as a second copy by regular mail. Most of the time the employee never picks up the Certified Mail and it gets returned to us. We keep it in the personnel file without opening it as proof we mailed it. My question: In the case you posted would that have counted in our favor? We did it, but the employee never saw it. That is one of the reasons I send another copy by regular mail so that the employee will have a better chance of actually seeing it. We want them to have the information. That’s the point. And we try to talk to them often, but would it have counted if we only had the returned mail showing we did try?
absolutely, both methods are preferred. Keeping the proof is excellent.