January 28, 2015 Top Story

Email Notification Insufficient under FMLA, Says District Court

Employers face uncertainty in seeking to satisfy FMLA notice provisions

Erin Louise Palmer

Emailing a request to an employee to recertify her health condition under the Family Medical Leave Act (FMLA) may now be insufficient to comply with the statute’s notice requirements. In Gardner v. Detroit Entertainment, the U. S. District Court for the Eastern District of Michigan denied an employer’s motion for summary judgment where the employee claimed that she did not recertify her health condition because she had not opened the employer’s email requesting recertification. Observers say the decision indicates that actual notice may now be required to satisfy the FMLA’s notice requirements.

Family Medical Leave Act

The FMLA provides leave to employees who suffer from “a serious health condition that makes the employee unable to perform the functions of [their] position.” To be eligible for FMLA leave, an employee must certify her health condition to the employer. An employer has the right to seek recertification “on a reasonable basis,” or more frequently where circumstances have “changed significantly.” Failure to submit a reasonably-requested medical recertification authorizes the employer to deny FMLA leave.

Failure to Recertify Results in Termination           

The plaintiff, a former casino employee, claimed that the casino improperly denied her FMLA benefits. For years, the employer had approved the plaintiff for intermittent FMLA leave related to a degenerative spinal disorder. At one point, the defendant and its third‑party FMLA administrator became aware that the plaintiff had been absent five more days than anticipated by her doctor and that she had called off work every Sunday for a one-month period.

Due to the unexpected absenteeism, the defendant’s administrator sent a letter to the plaintiff via email requesting that she provide recertification. The administrator did not receive the requested recertification and sent the plaintiff another email denying her intermittent FMLA leave. No representative of the defendant attempted to speak with the plaintiff about the recertification request while the employee was at work.

The defendant treated the plaintiff’s absences as unexcused and terminated her. The plaintiff appealed the denial of FMLA leave and submitted the required paperwork from her doctor. The administrator denied the plaintiff retroactive FMLA leave, making her termination final.

District Court Denies Summary Judgment

The plaintiff filed a lawsuit alleging that the defendant improperly denied her FMLA benefits. The defendant moved for summary judgment, arguing that the plaintiff was not entitled to these benefits because she failed to provide the requested recertification. The plaintiff maintained that the defendant did not provide proper notice because she expressed a preference for correspondence sent by postal mail and did not open the email requesting recertification.

The district court denied the defendant’s motion for summary judgment. According to the court, whereas “oral notification, a person-to-person communication, guarantees actual notice to the employee,” email notification, “in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.” The court emphasized the importance of this distinction where there is a genuine issue of material fact whether the plaintiff expressed a preference to receive correspondence by postal mail.

The district court rejected the defendant’s reliance on the U. S. Court of Appeals for the Sixth Circuit’s decision in Graham v. BlueCross BlueShield of Tennessee. According to the court, “there was no question in Graham that the plaintiff was aware of the need to recertify her FMLA leave” because the plaintiff admitted during her deposition that her supervisors had notified her orally regarding the need for recertification.

Although not cited by the district court, the U. S. Court of Appeals for the Third Circuit’s decision in Lupyan v. Corinthian Colleges may lend further footing to a requirement of actual notice. There the Third Circuit remanded a grant of summary judgment where the employer sent an FMLA notice via first class U.S. mail and the employee claimed that she did not receive that notice.

The district court’s reliance on actual notice may result in a “grave disservice” to employers “given email’s prevalence and widespread acceptance in the business world,” warns David E. Gevertz, Atlanta, GA chair of the Employment Subcommittee of the ABA Section of Litigation’s Civil Rights Litigation Committee. “Strictly applying a rule of actual notice would allow employees who fail to comply with their FMLA notice requirements to simply assert that the mail was never delivered, the email not opened, or the voicemail not received,” states Brian Koji, Tampa, FL, cochair of the Section of Litigation’s Employment & Labor Relations Committee. In fact, oral notice may not be preferable because “an employee could very easily deny that any conversation occurred about certification requirements,” adds Gregory T. Wolf, Kansas City, MO, cochair of the Labor and Employment Subcommittee of the Section’s Corporate Counsel Committee.

To avoid lawsuits, employers should consider sending FMLA notices by “certified mail, overnight delivery with delivery confirmation, or hand delivery accompanied by a signed acknowledgement from the employee,” advises J. Dalton Courson, New Orleans, LA, chair of the Section’s Civil Rights Litigation Committee. In addition, “it would behoove employers to give the employee the benefit of the doubt if she or he provides an untimely, but otherwise complete, medical certification,” states Gevertz. Koji similarly counsels employers “to be flexible with the requirements if it becomes apparent that the employee can produce the necessary information once the notice has been communicated, even if late.”

Erin Louise Palmeris a contributing editor for Litigation News.

Keywords: Family Medical Leave Act, FMLA, recertification, email notification

Related Resources

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).