Mailing FMLA Notice of Rights to Absent Employee May Be Insufficient to Prove Receipt by Employee, Third Circuit Holds

Many employers send Family and Medical Leave Act (FMLA) paperwork to absent employees via the mail—regular, first class mail—because it is a reasonable, cost-effective way to get the notice to those employees at home. Employers should reconsider this practice following the Third Circuit Court of Appeals’ decision in Lupyan v. Corinthian Colleges, Inc., 2014 WL 3824309 (3d Cir. August 5, 2014). In Lupyan, the employee claimed her FMLA rights were violated because she never received FMLA paperwork from her employer, despite the employer’s claim that it mailed the paperwork to the employee. According to the court, lacking evidence that the letter was delivered (such as a signature or tracking number), the plaintiff’s denial was sufficient to create an issue of material fact for a jury. In the advent of this decision, employers are encouraged to send FMLA notices to their employees via a method that can be tracked, such as certified mail return receipt requested, hand delivery, or a common carrier that provides delivery confirmation.