Court ups the ante in your FMLA notice responsibilities
Think your FMLA administration is a pain now? A recent appeals court decision could make it even worse.
The federal Third Circuit Court of Appeals recently overturned a lower court decision in favor of a company that’d been sued for FMLA interference. A quick rundown of the case:
Lisa Lupyan had been a science instructor for Corinthian Colleges for about three years when she ran into some personal difficulties, including depression. Her supervisor suggested she take a leave of absence.
Her supervisor suggested she apply for short-term disability benefits. So Lupyan went to her doctor and received certification for her depression. Based on that document, Corinthian’s HR department determined she was eligible for FMLA leave.
In a meeting shortly thereafter, Lupyan was instructed to initial the box marked “Family Medical Leave” on her Request for Leave form, but, she said, there was no discussion about her rights under FMLA.
The company testified that later that day, the HR department mailed Lupyan a letter advising her that her leave was designated as FMLA leave, and explained her rights and responsibilities under the statute.
Lupyan claimed she never received the letter.
And that’s where this case gets tricky.
Lupyan was out longer than the 12 weeks allowed under FMLA. So when she attempted to come back to work, the company terminated her, citing low student enrollment and the fact that she hadn’t returned within the FMLA timeframe.
Lupyan claimed that was the first time anybody told her she’d been out on FMLA leave. She sued, claiming the company had failed to notify her that her leave fell under FMLA.
The ‘mailbox rule’ gets tossed
Here’s that part that could change the way you provide employees with FMLA notices.
For many years, courts abided by the common law “mailbox rule.” The court acknowledged that under the rule, if a letter “properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed.”
But the court decided the mailbox rule shouldn’t apply in this case. First, the only evidence the company could provide that the letter was mailed was affidavits signed four years after the alleged mailing date.
What’s more, the court said:
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. …
… [J]ustice should not give way to expediency or the rigid application of a common law presumption that was adopted long before modern forms of communication and proof could have even been imagined.
The baseline message here: Unless you take steps to prove notifications were provided, you can get nailed by employees who simply claim they never received the material.
The case, Lupyan v. Corinthian Colleges, was remanded to the lower court, and we all know what that means (everybody, together now): An expensive trial or an expensive settlement.
A higher theshold
FMLA maven Jeff Nowak, writing on FMLA Insights, offered his opinion on the ruling:
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. … . Now, they can defeat summary judgment simply by denying that they failed to receive an FMLA notice sent by regular mail?
What should employers take away from the decision? Nowak’s advice:
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.
Nowak also suggests that this ruling should provide a reminder to employers to stay in touch with employees on leave.
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