We have a mini-FMLA crisis on our hands this week, and the courts are to blame.  This issue involves the FMLA notices that employers send to employees, but more importantly, the delivery route in which they send them.

You may recall that, a couple months back, I analyzed a decision by a federal appellate court which found that an FMLA notice sent to an employee by U.S. mail cannot be trusted because the employer cannot confirm whether the employee actually received it.

Get a whiff of this — this past week, a different federal court has determined that notice sent by email is not reliable either.

The Facts

Summer worked for MotorCity Casino, and over the course of many years, she had taken FMLA leave due to a degenerative spinal disorder, which made it difficult for her to work on her feet several days in a row.  In September 2011 alone, Summer took intermittent FMLA leave nine times, which was five more than anticipated by her physician, and she also had called off work every Sunday that month.

As any reasonable employer would, the casino sought recertification of the condition due to the increased frequency and her Sunday absence pattern. It sent its FMLA notices to Summer by email, instead of U.S. mail as it had done in the past.

As the story goes, the employee claimed that she did not receive the emailed FMLA notices. Whoa, what a shock!  About as shocking as my 7-yr old saying that he didn’t hear me when I asked him to clean his room. We knew the answer before we asked the question. Caught in spam filter . . . must have been a server problem . . . simply vanished into thin air. In any event, when Summer failed to return the recertification (despite an initial and subsequent request to do so by the casino), her absences were considered unexcused, and she later was terminated.

The Ruling

As an initial matter, the court noted that the FMLA regulations only require that the employer provide the employee oral notice of the need to provide recertification. The court apparently found this method to be the most desirable, since it guarantees person-to-person communication. (Of course, the court glosses over the fact that this method sets up a he said-she said situation in virtually every situation.)  As to FMLA notice sent by email, the court framed it up this way:

Defendant had the right to require Plaintiff to recertify her FMLA leave. … Specifically, the issue is whether Defendant [through its TPA], by informing Plaintiff of the recertification requirement via email, gave Plaintiff proper notice of that requirement … The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.

And with that quick stroke, the court refused to dismiss Summer’s FMLA claims, finding that the dispute over whether she actually received the FMLA notices by email precluded a dismissal of her FMLA claims. As a result, the court determined that only a jury could decide whether the casino violated the law. Gardner v. Detroit Entertainment LLC dba MotorCity Casino

Insights for Employers

Let me get this straight — one court just told us snail mail is unreliable for sending FMLA notices.  Now, another tells us electronic mail is unreliable for sending notices?  Someone please explain to me: How exactly does an employer ensure that an employee has received FMLA notice?  Is our only option to deliver it directly to the employee’s front door, with balloons and an entourage, ala Publishers Clearing House? [Never mind - Ed McMahon passed away several years ago, so the employee surely would deny having received delivery of that notice, too.]

Corporate communications are increasingly being sent electronically, so this court’s insistence in this day and age that the employer show that the email actually was delivered (despite the clear email trail) is ludicrous.  Moreover, as to the employee’s denial that she “approved” communication by email, it rings hollow. The TPA handling the casino’s FMLA administration obtained Summer’s email from Summer herself. When she provided her email address to the TPA, should she not have some expectation that the TPA would then use the email address to communicate with her?  Never mind — that makes too much sense.

What’s ultimately troubling here is that, in a matter of two months, a couple of courts have given employees a platform (whenever it’s convenient to them) to unabashedly deny having received FMLA notices that come through the most reliable means of communication today. In turn, courts are inappropriately placing far too heavy a burden on employers to establish that the mail delivered through the mail slot or directly into the Yahoo or Gmail inbox actually made it to them, even though we should have every confidence that the notice arrived exactly as expected.

Forgive my rant. But now that we’ve calmed down a bit, what do we do about this mess?

  1. There seems to be an increased value in providing the FMLA notices and required certification to the employee in person and having the employee sign a confirmation of receipt.  If the employee is on site when the notices are to be sent, I recommend providing them in hand to the employee and obtaining written confirmation.
  2. Occasionally, in-person delivery is not feasible, and of course, it’s never an option for TPAs. So, then what? Employers are well advised in these instances to send notices in a manner that requires proof of receipt, such as certified mail or overnight mail.  No question this is costly, especially for TPAs, but it’s seemingly the only foolproof delivery courts will accept if employers want to prevail on summary judgment and avoid a trial.
  3. What about requiring employees to confirm up front that email communications are an acceptable means of communication for FMLA notices?  I encouraged this option in my previous post on the topic, and it may have saved the casino in this instance, particularly where it was transitioning from snail mail to email for its communications with Summer. Keep in mind, though, that this confirmation option still has some gaps, as you undoubtedly will encounter employees who fail or refuse to sign a document agreeing to email communications.
  4. I hold my nose as I offer this suggestion: in instances where the employee claims to have not received the FMLA notices, employers should reconsider whether termination is the appropriate option. At a minimum, we now must closely review the situation to determine whether it is plausible [holding nose] that the employee did not receive the notices. Afterward, we should carefully assess the risk in terminating the employee, particularly where (as we had here) the employee promptly turned in certification after she informed the TPA that she had not received the requisite notices. I hate giving employees this cop out, but I also don’t like subjecting my employer clients to the liability incurred here and in the case referenced in my previous post.

As a related aside: Upon reading the court’s decision, did anyone notice yet another error made by the court? At the end of the opinion, the court further explained that the casino should have given the employee the opportunity to “cure” the “incomplete” certification. When it failed to do so, it created another issue for trial. As a matter of law, the court got it wrong. The employer’s beef here was not that the employee turned in an incomplete or insufficient certification.  To the contrary, the problem (as we know) is that she didn’t return one within 15 days after having received it.  Indeed, there was nothing to “cure.”  Another issue for the appeal, I suppose.

Excuse me now.  I’m going to try and get that Publishers Clearing House tour going again, as I think I might have just found a second calling…

Eric Meyer