Published Date: 08/25/2014
By Pat Rountree
In the past, courts have recognized the “mailbox rule” where if an employer had an established process and practice for mailing legally-required notices, that was sufficient to presume that the document was mailed. However, in a recent FMLA case in the US Court of Appeals for the 3rd Circuit, the judge stated that the mailbox rule is a weak presumption and that to have a strong presumption that the notice was delivered, employers should have a receipt verification (such as registered or certified mail receipt).
The case for FMLA interference in LUPYAN v. Corinthian Colleges, Inc. (http://j.mp/LU-CC) hinged on whether the employee received the required notification that her absence was being counted as FMLA. The employer said they mailed the notices and had company witnesses who signed affidavits (after the fact) that the notices were mailed. However, the employee said she never received the FMLA notification that her leave was being counted as FMLA; and on that note, the US Court of Appeals for the 3rd Circuit reversed a lower court decision that had been in favor of the company.
The employee did not return after the 12 weeks of FMLA and was subsequently terminated. Her contention was that had she received the notice, she would have known she had to return to her job within 12 weeks or risk losing her job.
The case will serve as an important reminder for employers on notice requirements under FMLA:
- Covered employers must post the FMLA poster.
- They must also provide a General Notice that at minimum provides the same information as the FMLA poster. This can be accomplished through the Employee Handbook FMLA policy that also provides company specific information, or a separate notice that is handed out to employees.
- Employers must provide the Notice of Rights and Responsibilities when an employee requests FMLA. The appropriate Medical Certification form should be included with this notice.
- The Employer must provide the Designation Notice when the employer has enough information to determine the reason for absence qualifies as FMLA.
The Court noted that although the Employee Handbook FMLA policy may advise employees of their responsibility to periodically report on their intent to return to work and to return at the end of the leave to maintain job restoration, that General Notice does not satisfy the other notice requirements. Although interesting in its result, please note that this decision was not in the federal circuit court that covers North Carolina, which is the Fourth Circuit.
If you have additional questions about FMLA, please contact a member of CAI's Advice & Resolution Team at 919‑878‑9222 or 336‑668‑7746.