Can You Prove the Mail Was Delivered? If You Are Sending An FMLA Notice, the Answer Must Be Yes
A recent case emphasizes the importance of implementing procedures that establish strict compliance with the employer notice obligations under the FMLA. In Lupyan v. Corinthian Colleges, Inc., the Third Circuit held that Corinthian Colleges, Inc. (the College) could not avoid a jury trial because it did not send the mandatory individual FMLA notice to the plaintiff via a mailing that produced proof of receipt. Ms. Lupyan applied for leave due to depression in December 2007. Her physician completed a Certification of Health Care Provider form, stating that she needed leave through April 1, 2008. The College verbally advised Lupyan that her leave was being designated as Family Medical Leave and allegedly mailed her a letter explaining her rights and responsibilities under the FMLA, including the fact that her FMLA leave ran out at the end of March. Lupyan did not return to work by the end of March, and the College terminated her employment. She sued, claiming that she never received the letter, and that if she had known that her leave was limited to 12 weeks, she would have returned to work and avoided termination. The lower court granted summary judgment to the College based on its affidavits stating that a letter satisfying the notice requirements of 29 CFR § 825.208 was mailed through regular snail mail to Lupyan. The Third Circuit reversed, holding that the presumption of receipt usually given to the U.S Postal Service mail was insufficient in light of Lupyan’s denial that she ever got the letter. Because the FMLA regulations are silent on the type of mail required for delivery of mandatory FMLA notice, many employers may use regular mail. Best practice in light of the Lupyan decision is to use certified or overnight mail so that proof of delivery exists when sending the Notice of Rights and Responsibilities and the Notice of Eligibility required under the FMLA and to obtain a personal email address from employees as part of the leave application and approval process. An email, with a receipt that shows it was opened, would also likely suffice for proof of delivery.