So I previously wrote about the problem with proving that an employee received a notice required by the Family and Medical Leave Act by regular mail, where there was no delivery confirmation. In a variation on that theme, a court recently held that proving an employee received an emailed FMLA notice could be equally problematic.
In Gardner v. Detroit Entertainment, LLC, the plaintiff had been approved for intermittent FMLA leave. However, the number of times that she called out on FMLA leave in the month of September (9x) exceeded the amount estimated by her doctor in the Certification of Medical Provider (4x). The employer and its third-party FMLA administrator also noticed that the plaintiff had called out every Sunday that month. (Definitely seems suspicious…)
Under the FMLA, recertification of an employee’s need for leave is permitted for several reasons, including where circumstances described in the previous certification have changed. The Department of Labor’s regulations implementing FMLA provide specific examples of such changed circumstances at 29 C.F.R. § 308(c)(2):
For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification… Likewise, if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off, then the timing of the absences might constitute a significant change in cirucmstances sufficient for an employer to request a recertification…
In this particular case, there was both a change in the frequency of the absences and a question about the timing of her absences. The FMLA administrator emailed a request for recertification to the employee. When the employee did not respond to the request for recertification, the absences that she subsequently incurred were deemed to be unprotected by FMLA. They were counted against her under the attendance policy, and she was fired for her attendance violations. She then sued her employer, arguing that she had specifically requested that FMLA correspondence be provided by postal mail, and that she never opened – and therefore never effectively received – the email. In other words, the employer did not provide her with proper notice of her need to recertify.
FMLA regulation 29 C.F.R. § 305(a) states that, after the initial request for certification, “an employer’s oral request to an employee to furnish any subsequent certifications is sufficient.” The employer argued that, given the sufficiency of an oral notice, an emailed notice should be more than adequate.
The court disagreed with the employer, however. It stated, “oral notice, a person-to-person communication, guarantees actual notice to the employee.” (Although, it’s entirely possible that an employee could deny the oral communication ever took place!) In contrast, no actual notice can be demonstrated by “the transmitting of an email, in the absence of any proof that the email had been opened and actually received…” So it will be up to a jury to decide if the plaintiff really received the email or not.
What should the employer do? Well, it seems that this decision, as well as the one I previously discussed suggest that all required FMLA notices and requests should be delivered by certified mail or with delivery confirmation. It may seem excessively cautious, but could save you in litigation!