BENEFIT MINUTE: Is there a particular method employers must use to send FMLA paperwork?

The federal Family and Medical Leave Act (FMLA) requires employers, once an employee puts them on notice of the need for leave, to give employees an eligibility/rights & responsibilities notice and a designation notice within five business days. Employers may also include a certification form for employees to have completed and returned. Employers often referred these collectively as “FMLA paperwork.”

There is no one method employers must, by law, use to get this paperwork into employees’ hands. Employers, however, fare best when they can show that the employee received it, whatever method they use. They want to avoid the employee successfully claiming they never received the paperwork.

Employers have options

Employers may provide the paperwork electronically, which is fine, again, as long as they can somehow show the employees received them. Sending them with a read receipt status can help. That way, it’s shown that someone opened them, and depending on the details, it’s assumed the employee did. Just make sure the employee knows to look in the Junk file, if necessary.

Sending the paperwork by regular U.S. mail might not have as much protection as often believed. Years ago, a federal Appeals court determined that sending it by regular U.S. Mal has a weaker presumption that it is delivered, and this presumption is nullified whenever the addressee denies receiving it.

Sending the paperwork by certified mail might also offer stronger proof, as it carries a strong presumption that the addressee received it.

Asking employees which method they will use, can get better results. If employees prefer email, ask which email — personal or work.

The best methods would be email or certified mail — something that gives employers a stronger argument that the employee received the paperwork.

Double check before denying leave

Sometimes, things get lost, including FMLA paperwork. Before denying FMLA leave due to an employee not providing a requested certification, employers should try contacting the employee via other means (phone, text, email, message) to determine if there are any extenuating circumstances involved. This can include the employee not receiving the paperwork.

Key to remember: Employers are not required to use any particular method for sending employees FMLA paperwork, but they have a better argument that the employees received it using receipt-validated methods.