Actual Notice of FMLA Necessary to Hold Employees Accountable
An employer’s failure to prove that it gave the required notices under the federal Family and Medical Leave Act (FMLA) led to an employee suing the employer for being terminated for failing to return from leave within 12 weeks.
The employee claimed that she did not know that her leave was being counted as FMLA and was not aware of the requirement that she must return within 12 weeks in order to protect her job. She alleged that if she had known of the expectations she would have expedited her treatment in order to return within the FMLA timeframe. The employer claimed that it mailed her the required notice while she indicated she never received it. Unfortunately the judge was not convinced by the “self-serving” affidavits regarding the mailing practices of the office staff, made four years after the event. The court found that “in this age of computerized communications and handheld devices” it was not too much to require businesses to use a form of communication that includes a verifiable receipt. The former employee also pointed to an unsigned copy of an “Acknowledgement of Receipt” in her personnel file arguing that if she had received the letter, she would have signed and returned the acknowledgement. Now a jury will get to decide who to believe (Lupyan v. Corinthian Colleges Inc., 3rd Cir, Aug. 2014).
Tips: This situation could have been avoided in multiple ways. Since the employer and the employee met in person to fill out the leave request forms, the notice of FMLA leave designation could have been provided in person. The employer could have also followed up with the employee when she did not return a signed Acknowledgement. The employer could have emailed the employee the paperwork, or at a minimum sent her an email to verify that she had received the forms in the mail. Of course, the employer could have sent the FMLA designation paperwork using a mailing service that provides confirmation of delivery. For more information on what FMLA notices are required, see our Legal Guide, “FMLA: Qualifying Events and Notice Requirements” (1442) or talk with your Vigilant staff representative.
For more timely and practical updates on the latest legal trends regarding FMLA, see our related employment leave law blogs.