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Employers Must Be Able To Verify Receipt Of FMLA Notices

By Joseph A. White


What’s the right way for an employer to send an FMLA notice to an employee? Email?Mail?As two recent decisions suggest, whatever method an employer chooses, it must be able to confirm the employee’s receipt of the notice, lest a fact issue arise which exposes the employer to liability.


Most recently, in Gardner v. Detroit Entertainment, LLC, a Michigan federal court denied summary judgment to an employer that was unable to prove that its former employee received its email request for FMLA recertification.   The plaintiff suffered from a degenerative spinal disorder. In a five year period, she took intermittent FMLA leave on seven separate occasions. The employer eventually sent the employee an email requesting that her doctor recertify the basis for her leave, as the FMLA entitled it to do. The employee, however, denied receiving the email. When she failed to submit the recertification, and failed to show up for work, the employer terminated her. The district court denied the employer’s motion for summary judgment on the employee’s FMLA interference claim because it found a fact issue existed as to whether the employee received the email: “The transmitting of an email, in the absence of any proof that the email had been actually opened and actually received, can only amount to proof of constructive notice.”


The Third Circuit Court of Appeals reached a similar conclusion in Lupyan v. Corinthian Colleges, Inc., a case involving an FMLA notice sent by regular mail. In that case, a Corinthian instructor took medical leave for depression. Corinthian classified the leave as FMLA-qualifying. It allegedly sent the instructor a letter, by regular mail, notifying her of such classification and also that her leave would expire after twelve weeks (the maximum required under the FMLA). The instructor did not return to work after twelve weeks and was subsequently terminated. In the ensuing FMLA litigation, the instructor denied receiving the FMLA notice letter that Corinthian allegedly sent.   Although Corinthian presented evidence that it actually mailed the letter (attempting to invoke the “mailbox rule”), the Third Circuit held that a fact issue existed as to the employee’s receipt of the letter:


[Corinthian] provided no corroborating evidence that [the instructor] received the Letter. The Letter was not sent by registered or certified mail, nor did [Corinthian] request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, there is no direct evidence of either receipt or non-receipt.Instead, the only evidence [Corinthian] submitted consists of self-serving affidavits signed nearly four years after the alleged mailing date. These affidavits implicate the presumption of receipt that arises under the mailbox rule. However, under the circumstances, it is a very weak presumption. Given [the instructor’s] denial, and the ease with which a letter can be certified, tracked, or proof of receipt obtained, that weak rebuttable presumption is not sufficient to establish receipt as a matter of law and thereby entitle [Corinthian] to summary judgment.


The lesson for employers: however you choose to send employeesFMLA notices, use a method that confirms receipt. In the case of emails, require a return receipt from the recipient. In the case of mail, use a method that requires proof of delivery with a signature, like certified mail. And if you don’t use such a method, expect no sympathy from the courts when an employee denies receiving an FMLA notice. As the Third Circuit observed:


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.

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Fried Bonder White, LLC. is an Atlanta, Georgia-based litigation boutique that specializes in complex business, employment and personal injury litigation. The firm’s attorneys represent clients, large and small, in the defense and prosecution of lawsuits throughout Georgia and nationwide.