Emailed FMLA Notices Insufficient, Court Rules

Author: Gloria Ju

October 28, 2014

Emailing Family and Medical Leave Act (FMLA) notices to employees may not suffice without proof the employee actually received the email, according to a recent court ruling. This decision follows a similar ruling regarding FMLA notices sent via first-class mail.

When sending FMLA notices, an employer should get proof of receipt (e.g., request a read receipt for emails; use registered or certified mail). Even if the employer meets with the employee and physically hands him or her the notice, the employer should have the employee sign a document acknowledging receipt in order to defend against any subsequent denials by the employee.

In Gardner v. Detroit Entertainment, LLC, d/b/a Motorcity Casino, an employee took intermittent FMLA leave for various reasons from 2004 to 2011. HR handled FMLA leave requests internally until 2009, when the employer hired a third-party administrator (TPA) to process such requests. The employee allegedly told the TPA that she wished to receive FMLA-related communications through postal mail. For two years, she received numerous letters from the TPA via postal mail.

In September 2011, the employee was absent five more times than anticipated by her doctor and had called off work every Sunday. On October 7, the TPA emailed the employee that her doctor needed to recertify the basis for her FMLA leave by October 25. When the employee failed to comply, the TPA emailed a letter on October 27 advising her that, due to the lack of recertification documentation, her intermittent FMLA leave request for October 7 through December 12 was denied. The employer subsequently fired the employee for having too many unexcused absences under its attendance policy. The employee then filed an FMLA interference lawsuit.

The employee claimed she did not open, and therefore did not effectively receive, the October 7 email in time to respond by the recertification submission deadline. She disputed the TPA's claim that she had authorized it to send correspondence to her via email only. The district court did not question whether the employer had the right to request recertification, but whether the TPA gave the employee proper notice of the need to recertify.

The employer argued that FMLA regulations provide that an employer's oral request for recertification is sufficient, so an email was more than adequate. The court distinguished between oral and email notification. According to the court, oral notification is a person-to-person communication that "guarantees actual notice to the employee," while email notification does not, absent any proof that the email had been opened and actually received.

In allowing the lawsuit to proceed, the court held that this distinction becomes particularly significant when there is a disagreement on whether an employee had expressed a preference for mailed versus emailed notices.