You may recall my post on August 8, 2014 about the Lupyan v. Corinthian Colleges, Inc. case in which the Third Circuit Court of Appeals reversed a summary judgment in favor of the employer when the employee claimed she never received an FMLA designation letter that her employer claims it mailed to her via first class mail.   Well we now have another case telling employers that sending an FMLA notice or request for recertification via email may not work either.

In Gardner v. Detroit Entertainment LLC dba MotorCity Casino, the employee was out on intermittent FMLA leave over a seven year period.  In October 2011, Defendant and its third-party FMLA administrator, FMLASource,  became aware that Plaintiff had been absent on intermittent FMLA leave nine times in September 2011, five more than anticipated by her doctor, and that she also had called off work every Sunday in September 2011.  So, on October 7, 2011 FMLASource sent a letter via email to Plaintiff, requesting that her health care professional re-certify the basis for her leave by October 25, 2011. Whether this email constituted sufficient notice to Plaintiff was the central issue in the case because Plaintiff claimed that she had informed FMLASource she wished to be communicated with by postal mail regarding FMLA-related communications.

Plaintiff argued that she did not open, and therefore did not effectively receive the October 7, 2011 email, in time to respond by the October 25, 2011 deadline. When there was no response, FMLASource automatically generated another letter on October 27, 2011, and sent it to Plaintiff again by email, advising her that due to the lack of recertification documentation, her intermittent leave was denied.  Defendant then applied its normal attendance policy and treated Plaintiff’s absences as unexcused resulting in an accumulation of 8.5 attendance violation points between July 15, 2011 and November 2, 2011, subjecting Plaintiff to termination.  Defendant terminated Plaintiff and she sued under the FMLA.

In analyzing the sufficiency of the notice to Plaintiff that recertification was required, the court held that an important distinction must be made between oral notification and email notification – “…oral notification, a person-to-person communication, guarantees actual notice to the employee. The transmitting of an email, 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 went on to say that this distinction becomes particularly significant when an employee has expressed a preference for correspondence to be sent by postal mail, as opposed to email.  According to the court, there was genuine issue of material fact regarding whether or not Plaintiff had made such a request.  Plaintiff claimed that she never authorized FMLASource to communicate with her via email only and Defendant claimed that Plaintiff had previously authorized email correspondence.  Because there was a disputed issue of material fact, the court denied the employer’s motion for summary judgment.

LESSON FOR EMPLOYERS:  Similar to the message from the Lupyan case – if an employer wishes to prevail on summary judgment, it will need to send FMLA notices and/or requests for certification or recertification via a method that establishes receipt by the employee.