Monday, August 11, 2014

You might want to reconsider if you send your FMLA forms via regular mail


One of the very first things a lawyer learns in law school is the “mailbox rule.” This rule simply states that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed … that it reached its destination at the regular time, and was received by the person to whom it was addressed.” It gives the benefit of the doubt to the sender, based on the reliability of the U.S. Postal Service.

Well, it’s 2014, and at least one federal court of appeals is no longer enamored with the reliability of the U.S. Postal Service. In Lupyan v. Corinthian Colleges, Inc. (3d Cir. 8/5/15) [pdf], the 3rd Circuit Court of Appeals (which covers Pennsylvania, New Jersey, and Delaware), rejected the mailbox rule and ruled that its presumption does not apply when an employer sends FMLA forms via regular snail mail, and the employee, without any other support, denies that he or she received the forms in the mail.

Here are the facts. Lisa Lupyan, an instructor at Corinthian Colleges, took a personal leave of absence for depression. While out, she sent the school a completed FMLA medial certification supporting her leave. As a result, the employer converted the leave from “personal” leave to “FMLA” leave, and mailed, via regular U.S. mail, the appropriate FMLA forms designating her absences as such. When Lupyan attempted to return to work after 14 weeks, the employer told her that it had already terminated her because she had failed to return after her 12 weeks of FMLA had expired. 

The court concluded that because the employer could not prove that Lupyan had received the forms, she was entitled to a jury trial on her FMLA claims.

CCI provided no corroborating evidence that Lupyan received the Letter. The Letter was not sent by registered or certified mail, nor did CCI request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, there is no direct evidence of either receipt or non-receipt….  Accordinly, we hold that evidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee’s positive denial of receipt, creating an issue of fact for the jury

More importantly, the court opined on the type of notice an employer should expect to provide in today’s modern age.

In this age of computerized communications and handheld devices, it is certainly not expecting too much to  require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as  important as a legally mandated notice. 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.

What does this mean to your business? Stop sending FMLA notices by regular U.S. mail. Instead, use a method that enables you to prove delivery.

  1. If you hand-deliver the notices to an employee, have the employee sign and date a receipt for the documents.
  2. If you mail, send via a method that permit you to track delivery — whether it’s certified mail with a green card to return, or an express delivery service with a tracking number.
  3. If you email, click the box on Outlook that will send a delivery notice upon receipt.

I was also planning to write a long dissertation on what this employer did wrong, how it failed to effectively communicate with the employee during and after her leave, and how a few simple phone calls could have avoided this entire mess. Then I read Jeff Nowak’s thoughts on his FMLA Insights blog, and decided I couldn’t say it any better:

I see such a lost opportunity here. Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave? … If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Am I correct? Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process. Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee. As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!

This decision also is a reminder of what not to do when FMLA leave ends. What else did the College do wrong?  First, it insisted that the employee return without restrictions…. Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.

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