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How to Properly Give Notice to Employees Taking FMLA Leave

By Gabriella Khorasanee, JD on August 12, 2014 | Last updated on March 21, 2019

The Family and Medical Leave Act ("FMLA") recently marked its 21st anniversary, and with more than 100 million people using the benefits bestowed by the Act, your company's employees have probably taken some sort of medical leave.

Hopefully, your law department has already taken time to review your company's FMLA policies to make sure they meet proper standards. However, a recent case decided in the Third Circuit did away with traditional notions of notice.

Since it's the first case to address the issue, according to Business Insurance, we thought we'd let you know about the case, and give you some tips to make sure you adequately provide your company's employees with FMLA notice.

The Third Circuit Case

In Lupyan v. Corinthian Colleges Inc., plaintiff Lisa Lupyan sued CCI for interference for her FMLA rights, arguing that CCI did not provide her with individual notice. That is, she claimed she did not return to work within the proscribed 12-week period, because her company did not inform her that they characterized her medical leave under FMLA. Her company claimed they sent her a letter through regular mail.

The Third Circuit held that Lupyan's denial of receiving a letter was sufficient to rebut the common law mailbox rule, and enough to create a question of fact for the jury. The court opined that in this day of technological advancements (far superior to the days when the mailbox rule came to be), if an employer wanted to give an employee notice, it should "use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice."

The Importance of Notice

Failure to give your company's employees notice about their rights under the FMLA can give rise to an employee's claim of interference of their rights under the FMLA. Thus, the legal department should make an effort to review how it gives employees notice of their rights under FMLA.

The FMLA requires two types of notice: general and individual. For example, to meet the standards for general notice, hanging a poster "in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted," is required. Furthermore, employers must include FMLA policies in employee handbooks as well.

To meet the standards of individual notice, your company may want to heed the Third Circuit's advice. Noting that the cost of trackable mail is "negligible" compared to the cost of potential litigation, your company may want to make it a policy to send out individual FMLA notice letters to employees via certified mail, as suggested by the Third Circuit, because of the "strong presumption" of receipt created "because it creates actual evidence of delivery in the form of a receipt."

Though your company may be headquartered far from the Third Circuit, it is the first court to address this issue. Furthermore, in our global economy, your company may face litigation in any circuit, so it's best to take a conservative approach when it comes to FMLA notice. It's always better to be safe than sorry.

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