If You Can’t Prove Your FMLA Notice was Received It May be Ineffective

Written by Robert G. Brody and Susan M. Westphal on December 30, 2014

One would think that giving an employee notice of his or her rights under the Family Medical Leave Act (“FMLA”) should be a rather uncomplicated process.  Since every communication these days tends to be via email, when an employee is out, you could just send a quick e-mail asking for confirmation of the ongoing need for leave, right?  Well, after a recent court decision, you may want to make sure mandated notices are sent by a means where you can confirm receipt.  Otherwise, you may have given an employee a ticket to a lawsuit and be stuck defending a litigation for violating the notice provisions of the law.

The District Court in Michigan held that an FMLA notice requesting re-certification of the need for medical leave, which was sent by regular mail, was not proper notice.  In Gardner v. Detroit Entertainment, LLC, a former employee of a casino claimed she was fired in violation of the FMLA notice provisions.  Gardner suffered from a degenerative back disorder that resulted in her need for intermittent leave.  When the third party human resources company (“FMLASource”) noticed her absences were greater than her doctor anticipated and she had taken every Sunday off in the month of September, FMLASource sent her an email asking her to have a medical professional re-certify her need for the intermittent leave.  When no timely response for re-certification was received, it terminated Gardner’s employment, for violations of the Casino’s policy and procedures regarding unexcused absences.  Gardner says she never received the notice, never opened it, and had only authorized letters be sent to her by the U.S. mail (which was in dispute).

The Court held there was a question of how notices were to be received by Gardner and therefore the issue could not be decided on motion but rather had to go to trial.  The Court stated that the notice should have been sent by regular mail and that the Casino should have followed up orally with Gardner before she was terminated for violating the company’s policy on unexcused absences.

Like all notices under the FMLA or other laws or company policies, it is important the employee is actually aware of the notice.  Therefore, proof of your mailing, to and the receipt by, your employee is imperative.  How you choose your method of giving notice should be viewed in light of the relevant statutes, case law, and written notice agreements confirmed with your employees.  Otherwise, you may be asking for unnecessary litigation.

Brody and Associates regularly advises management on complying with state and federal laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Family and Medical Leave Act, Legal Updates

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Susan Westphal has represented employers in employment disputes covering wage and hour claims, discrimination, sexual harassment, retaliation, and employment at will, both in court and before administrative agencies. Learn More »