In August, we reported on Lupyan v. Corinthian Colleges. In that case, an appeals court left a jury to settle a dispute over whether an employee ever received an FMLA Designation Notice that her employer claimed to have sent via first-class U.S. mail.
At the time, Ellen Storch, a Woodbury, N.Y.-based partner at Kaufman Dolowich & Voluck, told HRE that employers and HR should “do more than the law requires when providing employees with FMLA notices,” sending them in multiple ways that create evidence of receipt, such as certified mail or an overnight carrier.
Just don’t send them by email. Or at least not only by email, anyway.
That’s what a Michigan district court recently said in Gardner v. Detroit Entertainment, LLC, sending the case to be decided by a jury, after determining that email is not a reliable way to ensure an employee has received FMLA notices, as the defendant company couldn’t provide proof the employee had gotten them.
According to the suit, Summer Gardner, who had been an employee at the Detroit Entertainment-owned MotorCity Casino since 1999, “was on and off intermittent medical leave for various reasons” from 2004 to 2011. In September 2011, Gardner was absent on 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,” court records indicate.
On Oct. 7, the casino sought recertification of Gardner’s degenerative spine disorder, emailing a letter to Gardner requesting that her healthcare professional re-certify the basis of her leave by Oct. 25, 2011. Gardner maintains that she did not open—and thus did not effectively receive—the email in time to respond by the specified deadline.
As such, Gardner did not submit the recertification paperwork in time. An automatically generated follow-up letter was sent to Gardner, advising her that her intermittent leave was now only approved from July 1, 2011 to Oct. 6, 2011, and that her leave request from Oct. 7, 2011 to Dec. 12, 2011 was denied, “due to the lack of recertification documentation.”
Gardner was ultimately let go for what were now considered unexcused absences. She sued, claiming her firing violated the Families and Medical Leave Act.
I asked Storch for her thoughts on this case, and her message for HR leaders was much the same as it was in August: use multiple channels to send disclosures, ensure that notices were received, keep meticulous notes and documentation, and carefully consider the intended purpose of the FMLA before terminating an employee who has exceeded the leave entitlement or has failed to comply with a technical obligation under the Act.
“Use multiple methods of communication, at least one of which can be used to prove receipt by the employee,” says Storch, noting the employer in both the Gardner and Lupyan cases used just one way to send notices, which created an issue of fact precluding dismissal of the complaints on summary judgment.
“Make every reasonable effort to ensure the notice is actually received by the employee before terminating an employee on an FMLA technicality,” she adds. In MotorCity Casino’s case, the organization “could have simply asked the plaintiff in person about the requested recertification.
“Had the employer done so,” continues Storch, “it would have learned the employee had not received the request, and the suit could have been avoided.”Twitter It!