What's The Required Manner Of FMLA Employer Notices?

As Des Moines FMLA lawyers we sometimes encounter cases in which an employer has not provided an employee with all of the notices the FMLA requires. In general, the FMLA requires employers to provide employees with both general and individual notice about the FMLA. To meet the general notice requirements, an employer must post a notice of FMLA rights on its premises. Because employers have some discretion in the way FMLA policies are implemented, employers must also include information regarding the employer's FMLA policies in a handbook or similar publication. Additionally, regulations issued by the Department of Labor require that an employer give employees individual written notice that an absence falls under the FMLA, and is therefore governed by it. 

So we know the types of FMLA notices that employers are required to give their employees. But in what manner must employers deliver that notice? Regular mail? Email? In person? Recent federal court decision suggest that there are no easy answers to that question and that it'll often to be up to a jury to decide whether an employee received proper FMLA notice in Des Moines wrongful termination cases.

The United States Court of Appeals for the Third Circuit recently held in Lupyan v. Corrinthian Colleges, Inc. that an employer's assertion that it sent FMLA notice to an employee by regular mail was not definitive proof of the employee's receipt of that mailing in the face of the employee's denial that she ever received the mailed notice. A big problem for the employer was that it didn't send the letter certified or in any other manner that would allow tracking or receipt confirmation. Basically, the employer could prove that it mailed the notice, but it couldn't prove that the employee received it. A jury would have to resolve that conflict in the evidence concerning whether the employee received the FMLA notice that the employer claimed it mailed her. 

The Third Circuit was critical of the employer for not using other available methods to deliver the employee's FMLA notice: "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."

On the other hand, a Michigan federal district court recently determined in Gardner v. Detroit Entertainment, L.L.C. that a question for trial arose when an employer transmitted an employee's FMLA notice by email, which is exactly one of the methods of delivery that the Lupyan court had earlier recommended. Gardner involved FMLA notice requirements for employer recertification. The court noted that, just like with regular mail, it cannot automatically be presumed that an employee receives an email sent by the employer: "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. This distinction becomes particularly significant when an employee has expressed a preference for correspondence to be sent by postal mail, as opposed to email."

In sum, it appears that, regardless of the method of delivery, employees can always create an issue for trial regarding receipt of any required FMLA notice as long as they can truthfully deny receipt of the notice.