FMLA: Communicating with Employees on Leave

Don’t end up in expensive litigation over something that could have been cured by spending a few dollars.

A difficult issue is created for employers when they need to communicate with employees on leave. What is the best mechanism to communicate in a not-overly-threatening manner, but also to document the communication and confirm the employee’s receipt?

Traditionally, U.S. Mail was thought sufficient because of the “Mailbox Rule,” which is an assumption that an item mailed was received by the recipient. Now however, several cases have held that U.S. Mail or email alone, or even in conjunction, is not sufficient, especially under the Family Medical Leave Act (FMLA). The employer must prove that the employee actually received the notice, and the employee’s denial of receipt may by itself be enough to create an issue of fact, so that the employer will be forced to let a jury decide the issue.

One suggestion is to have employees sign a form, before leave ever becomes an issue, by which they consent to electronic communications. Even then, when you send an FMLA notice electronically, use the “read receipt” feature on your email. If you do not receive the confirmation, communicate with the employee in another manner. If you prefer to communicate in hard copy, send your communications by certified, registered or overnight mail, which requires the employee to sign for receipt. That way, you won’t end up in expensive litigation over something that could have been cured by the expenditure of a few dollars.