Many employers use the U.S. Postal Service and/or e-mail to send the requisite notices to employees requesting Family and Medical Leave Act (FMLA) in an effort to save time and/or money. Two recent federal court decisions, however, will likely cause many employers to reexamine their notification practices and opt for a method of delivery that can be verified.

The FMLA requires employers to provide general notice to employees of their FMLA rights (both by posting a notice on the employer's premises and by including information regarding the employer's specific FMLA policies and procedures in an employee handbook), as well as specific notice to those employees seeking to exercise their rights under FMLA. FMLA regulations establish the specific requirements related to this individualized notice, of which most employers are well aware. If an employee has been prejudiced by the employer's failure to provide proper notice, this can result in an actionable interference claim.

In Lupyan v. Corinthian Colleges, the Third Circuit reversed a district court's decision granting summary judgment to an employer, where the ruling rested on a presumption that the employee had received individualized notice of FMLA rights. The employee, when presented with evidence that the employer sent the requisite individualized notice by regular U.S. mail (without any tracking or verification of receipt), denied having ever received it. Whether or not the notice was received was a key issue because the mailing would have informed the employee that her time off would be counted against her 12 weeks of FMLA leave; if the employee were to be believed that she did not receive it, then she could offer an explanation for not knowing that she would be terminated if she failed to return after exhausting her available leave.

While many courts recognize a presumption (called the "Mailbox Rule") that a document sent by U.S. mail was received by the recipient, the Third Circuit stated that this presumption is not ironclad. Considering the evidence before it, the court held that the employee's claim that she did not receive the FMLA notice by mail was sufficient to create an issue of material fact that should be resolved by a jury, vacating the grant of summary judgment to the employer. The Third Circuit made it abundantly clear that employers wishing to avoid material disputes regarding whether an employee has received the requisite individualized notice regarding his or her FMLA rights should send such notice using a method that allows for verification of receipt. As the Third Circuit put it, "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."

On the heels of the Lupyan decision, the District Court for the Eastern District of Michigan held that transmitting FMLA notices by e-mail, without any proof that the e-mail had been opened and received by the employee, could only constitute proof of "constructive" as opposed to "actual" notice of an FMLA-related communication. In Gardner v. Detroit Entertainment, LLC, the court denied the employer's bid for summary judgment on the employee's FMLA interference and retaliation claims, finding a material issue of fact existed as to whether Ms. Gardner had received notice from the employer informing her of the need to recertify her eligibility for intermittent leave. The question of whether notice had actually been received mattered because the employer terminated Ms. Gardner pursuant to its attendance policy after a number of absences were not excused as FMLA-related due to her failure to recertify by the deadline set forth in the e-mailed notice. Although the employer contended that Ms. Gardner had requested e-mail delivery of notifications, she claimed otherwise, stating that she rarely read her e-mails and thus elected to receive communications by mail after the employer retained a third-party administrator to process FMLA requests. None of this would have mattered had the employer sent Ms. Gardner a certified letter or confirmed the need to recertify orally (with an acknowledgment signed by Ms. Gardner); relying instead on an e-mail left the company unable to conclusively rebut Ms. Gardner's claims.

In light of the Lupyan and Gardner decisions, employers looking to ensure that an administrative or clerical issue does not preclude them from proving that they provided an employee with the requisite FMLA notice should consider transmitting this notice by registered or certified mail, requiring a return receipt, or by using some other physical (oral) or electronic transmittal method by which receipt can be verified and confirmed. At the same time, employers should also ensure that both the requisite individualized FMLA notice and evidence of its delivery are maintained in the employee's files.