Two recent Federal Court rulings have addressed Family and Medical Leave Act (FMLA) notices sent to employees and methods that cannot provide proof of receipt. Employers are required under FMLA to provide general notices of employee rights and also specific notices regarding employee rights and responsibilities when leave is needed.
In one case a few months ago, a Federal Court found that sending the notifications by regular mail was not acceptable proof as there was no confirmation that the employee received it.
In this case the court stated:
“In this age of computerized communication 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.”
A second Federal Court recently found that email notices also did not provide proof of receipt of an FMLA notice. In this case, the court stated:
“The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.”
While employers may not agree that additional work in proving receipt of FMLA notices is negligible in cost or inconvenience, these rulings show that employers can no longer rely on “the mailbox rule” that allows for “presumption of receipt” if it can be shown a letter was mailed or given to a postal carrier. Mailing notices via U.S. Postal mail or email may not be sufficient if an employee claims they did not receive them.
To protect themselves, employers are encouraged to use certified or overnight mail with some form of verifiable receipt or tracking that can be used to prove delivery or even better, when possible review the materials with the employee and have him or her sign a receipt. Email and U.S. mail can still be used and it may be a faster or easier way to provide the employee with the notifications this way, but these methods should be doubled up with a more verifiable method.
Employers can find copies of model FMLA notices and other forms and information regarding FMLA on the Department of Labor website (http://www.dol.gov/whd/fmla/).
If you have questions regarding your employer responsibilities or coverage under FMLA, contact KMA for assistance.