With all the FMLA paperwork that a leave administrator has to provide an employee during the FMLA process, you’d wonder whether you’re attending a real estate closing. All these documents — whether it’s the Notice of Eligibility, medical certification, or the Designation Notice — typically get sent by good old fashioned snail mail, delivered by your friendly neighborhood U.S. postal worker.
Back in the day, we could rely on that package arriving safely at its destination. And on time. We were so sure of the U.S. mail’s accuracy and efficiency that the courts recognized the “mailbox rule,” under which we presume that a letter which is properly sent with postage reaches its destination in a timely fashion and actually is received by the individual to whom it was addressed.
This week, however, a federal appellate court took a sledgehammer to the mailbox rule, finding it to be a relatively weak indicator that the addressee actually received the correspondence sent to him. 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.
Let me explain.
Lisa worked for Corinthian Colleges 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. Lisa agreed, and she completed a leave of absence request form seeking “personal leave.” A short time later, Lisa 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.
Lisa required leave from December through mid-March, which was 14 weeks later. Several weeks thereafter, Lisa 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.
So said Lisa: “What FMLA? This is the first time I knew my absence was being classified as FMLA leave…I never received notice that this was FMLA leave.”
Lisa 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 Lisa received the FMLA notices was central to her FMLA lawsuit. According to the court, if the College could show that Lisa 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, Lisa’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. (My emphasis)
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? Criminey!
Disagree as we might with this decision, what do we learn from it?
- There is no question that the federal appellate court here is insisting upon a higher threshold for FMLA notice. As the court told us in no uncertain terms, if employers want to maximize their chances of dismissing an FMLA claim short of trial, they have to use “some form of mailing that includes verifiable receipt” when sending FMLA notices. Therefore, in jurisdictions covered by this court (which handles appeals from Pennsylvania, New Jersey and Delaware), it is advisable to send all FMLA notices by certified mail, overnight mail or email, since these are relatively capable of verifiable receipt. Hand delivery is good, too, so long as you obtain a signature that the employee received it. One thing to keep in mind when it comes to email: Email communications present their own dilemma, since these communications often can be filtered right into a junk mail folder, never to be seen by the intended recipient. If you intend to use email as a means of communication with your employees, first seek their permission and confirmation that email is an acceptable means of communication regarding FMLA notices. (Work with your legal counsel to draft this document.)
- I see such a lost opportunity here. Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave? We’ve addressed these situations before — when you don’t communicate regularly with an employee on an extended leave of absence, you increase your problems exponentially. This case serves as yet another good example. If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Can I get an Amen!?! Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process. Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee. As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work. Don’t forget we’re in the human relations business!
- This decision also is a reminder of what not to do when FMLA leave ends. What else did the College do wrong? First, it insisted that the employee return without restrictions. We should recall from previous posts that requiring an employee to return 100% healed is an ADA problem. Don’t do it. 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. Come on, employer friends! This is ADA 101. Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work. I discussed this in a previous post, too.
In the meantime, I’m going to the post office to pick me up some green certified mail cards. Anyone need some?