In The Legal Loop

Deena B. Rosendahl Esq.

FMLA Employer Alert!

by Deena B. Rosendahl, Esq.

The Family Medical Leave Act (FMLA) requires that employers notify an employee in writing of his or her eligibility to take FMLA leave, whether the leave will be designated as FMLA leave, the employee’s rights and obligations under the FMLA (as well as any consequences for failing to meet those obligations), and of the particular amount of leave that will be counted against the employee’s FMLA leave entitlement. Nowhere in the Act does it require the means by which these required written notices should be provided to an employee. However, a recent federal appeals court’s ruling now sends New Jersey employers a very strong message that all FMLA notices should be sent with proof of receipt of service.

On August 5, 2014 the U.S. Court of Appeal for the Third Circuit overturned the lower court’s dismissal of an employee’s claims against her employer arising out of the employee’s termination following her failure to return to work upon the expiration of her FMLA leave. The employer alleged the 12 week leave time expired and the employee failed to return to work. The employee alleged she never received the required FMLA notice sent by her employer.

While the employer had a copy of the required notices, it had no proof that it was actually sent to and received by the employee. The Court noted in its decision that in today’s modern age of communication, it was not unreasonable to require employers to use a form of delivery which includes a verifiable receipt when mailing something as important as a legally mandated notice.

This ruling sets a new precedent for how FMLA cases in New Jersey will be addressed by the Courts. All affected New Jersey employers are urged to immediately adopt a practice of obtaining receipts of service for all FMLA notices (e.g. certified mail, return receipt requested). For questions on FMLA compliance, and other employment related legal questions, please contact Deena B. Rosendahl, Esq. at 201-947-8855 or via email.

Kaufman, Semeraro and Leibman, LLP