As (most) FMLA-covered employers know, once an employee requests Family and Medical Leave Act Leave, there are certain notices that are required.  You have to provide the employee with an Eligibility Notice and a Rights and Responsibilities Notice within five business days of the request for leave, and once the employee has submitted enough information so you can determine if the leave is FMLA-qualifying, you must provide a Designation Notice within five business days.  But how are these notices given?  And more importantly, can you prove that they were?  This was the issue in a recent case, Lupyan v. Corinthian Colleges, Inc.

The FMLA regulations state that the Eligibility Notice  can be oral or in writing.  As a practical matter, we suggest that you ALWAYS give the notice in writing, using the DOL’s model form. As for the Rights and Responsibilities Notice  and the Designation Notice , they must be in writing.  Again, the DOL has prepared model forms for each (the Eligibility Notice and Rights and Responsibilities Notice are the same form), and we suggest you use them.  The regulations set out very specific items of information that must be included in each notice.  By using the DOL’s forms, there will be no dispute that the requisite items of information have been covered.  But this leads to the next question – how do you actually deliver these written notices?

Oddly, the regulations don’t specify the means of delivery for the Eligibility and Designation Notices, but they do for the Rights and Responsibility Notice.  They state that, if leave has already begun, the Rights and Responsibilities Notice “should be mailed to employee’s address of record.”  The regulations also provide that it “may be distributed electronically.”  Because the regulations don’t talk about delivery of the other two Notices, we can presume that these methods are also acceptable for those documents.  So most employers will drop the notices in the mailbox, and the U.S. Postal Service takes it from there.  And that is fully compliant with the regulations.

But the issue that came up in the Lupyan case is whether the employee actually received the notices.  Under the regulations, the failure to provide notice may be viewed as an interference with an employee’s FMLA rights – and this can subject the employer to a wide range of damages, including back pay and benefits, other actual monetary losses, and reinstatement.

The employer argued that the “mailbox rule” should apply – this is a longstanding rule that presumes a properly-addressed and mailed letter was received by the recipient.  In this case, the HR Coordinator testified that she prepared the letter designating the employee’s leave as FMLA-covered and placed it in the outgoing mail bin.  The problem here is that the presumption fails because the employee testified that she never received the letter, and therefore never knew she was on FMLA leave or what was required of her under FMLA.  Had she known, she argued, she would have handled her leave differently and, therefore, would not have been terminated for failing to return at the end of her FMLA leave entitlement.

The U.S. Court of Appeals for the Third Circuit observed that there was no evidence that the employee had received the letter – the employer had not used registered or certified mail or use any other “now common” tracking methods.  The Court stated, “In the 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 something as important as a legally mandated notice.”

What this case emphasizes is that wise employers might wish to take extra steps to be able to prove that the required notices were actually delivered.  If the notices are sent by mail, you could require a signature receipt (i.e. certified mail) or use a tracking number for delivery.  If they are sent by e-mail, use some sort of electronic receipt.