FMLA: Communicating with Employees on Leave
Dont 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 employees
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 employees 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
wont end up in expensive litigation over something that could have
been cured by the expenditure of a few dollars.
This article is
intended to provide general information prepared by
professionals in regard to the subject matter covered. It is
provided with the understanding that, in providing this
information, the author is not engaged in rendering a legal or
other professional service. Although prepared by professionals,
these materials should not be utilized as a substitute for
professional service in specific situations. If legal advice or
other expert assistance is required, the service of a
professional should be sought.