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Make Sure FMLA Forms Mailed to Employees Can Be Traced

    Client Alerts
  • November 16, 2017

Here is a nightmare scenario for human resources: The company sends an employee absent from work the required Family and Medical Leave medical certification form via regular mail. The employee fails to return the form within the 15-day period, and the employer classifies the absences as unexcused, resulting in the employee’s termination. The employee then files an administrative FMLA complaint with the Department of Labor, claiming that the employer failed to grant him his FMLA leave entitlement. When the employer responds that the employee did not return the medical certification, the employee replies that he never received the form. DOL finds for the employee, ordering reinstatement and back wages.

What happened here? Unlike many federal laws, the FMLA has no “mailbox rule” that presumes that an employee receives required notices once they are placed in the mail. The employer has the burden of proving that the employee in question actually received the documentation. DOL and federal courts will presume that the employer maintains evidence of such receipt.

In order to avoid this scenario, all FMLA notices and other forms should be sent in a format that produces a return receipt. If sent electronically, the employer should request a delivery receipt of the email. If delivered in person, the employee should be asked to sign an acknowledgement of receipt. If the employee refuses to accept delivery, at least the employer can demonstrate that an attempt was made to provide the notifications. A few additional dollars spent on postage can save uncounted hours and expenses in trying to prove after the fact that the employee was actually sent the required documents.