FMLA Notices

The Third Circuit Court of Appeals issued two important decisions under the Family and Medical Leave Act in August. On August 5, 2014, the court decided Lupyan v. Corinthian Colleges, Inc., No. 13-1843. There, employee Lupyan initially took a personal leave. When the employer became aware of the reason for the leave, it authorized FMLA leave. While an employer representative met with Lupyan about her leave, her FMLA rights were not explained to her at that time. Later that afternoon, however, the employer claimed it mailed the employee a letter advising her that her leave was FMLA leave, and explaining her rights under the FMLA. Lupyan denied receiving the notice, and denied any knowledge that she was on FMLA leave until she tried to return to work.

When Lupyan was released by her physician to return to work, she was told that she was being terminated because of low student enrollment and because she had not returned from FMLA leave within the 12-week FMLA allotment. Lupyan brought suit, claiming that the employer interfered with her leave by not giving her notice that her leave fell within the FMLA, and also claimed she was retaliated against for using FMLA leave.

The court denied the employer’s request for summary judgment, holding that there was a factual issue as to whether Lupyan received her required notice under the FMLA. Under the law, the “mailbox rule” provides a presumption that, if a letter is mailed, it is presumed that it reached its destination at the regular time and was received by the person to whom it was addressed. The court held that, where there is no proof of delivery, the presumption is weak, and was not strong enough in the face of Lupyan’s denial of receipt, to allow summary judgment to be granted. Accordingly, the case needed to go to trial.

What Does This Mean For You? Notices under the FMLA, as well as other notices required by law, should be sent by a means that provides for a signed receipt, such as certified mail. If the notice is delivered in person, the employer should require the employee to sign for it. It also is good practice to send notice to any employee on FMLA leave near the end of the leave, particularly if the entire FMLA allotment may be used and the employee is in danger of termination if he or she does not return to work.

Return to Work under FMLA

On August 27, 2014, the Third Circuit Court of Appeals issued another decision, Budhun v. Reading Hosp. and Medical Ctr., No. 11-4625 (3d Cir. Aug. 27, 2014), addressing issues under the FMLA.

Employee Budhun worked as a credentialing assistant, where 60% of her job involved typing. She broke a finger, and her doctor taped three fingers together to stabilize the broken digit. She filed for FMLA leave, and was out of work for a period of time. She then obtained a fitness for duty certification stating that she could return to work without restrictions. Budhun explained that she could type, but would not be as quick as usual. When she returned to work, however, a human resources employee sent her an email stating that, since she could not type with both hands, she could not perform the essential functions of her job, and sent her home. She then returned to her doctor, who completed her FMLA certification, with contradictory return to work dates, one of which was the date that Budhun had attempted to return to work. The employer did not question this discrepancy. Budhun remained on leave for the balance of the FMLA time she had available. The employer eventually terminated her employment.

Budhun sued, claiming FMLA interference and retaliation. The employer moved for summary judgment. The court held that there was an issue of fact as to whether Budhun attempted to invoke her right to return to work when she first came back to work and was told to go home. The court held that she had shown evidence sufficient for a jury to find that she had invoked this right, because she provided a fitness for duty certification that said she could return with no restrictions. The court held that an employer may require that the fitness for duty certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer sends notice that the employee is eligible for FMLA leave. The employer here did not do so.

What Does This Mean For You? Be aware that, if an employee provides a certification from a health care provider that he or she can return to work from an FMLA leave, the employer cannot require the employee to remain on FMLA leave. Best practice after this case would dictate sending a list of essential functions or the position description to any employee at the time FMLA leave has been approved.

If you have any questions about these cases or any other employment or labor law matter, please contact S. Whitney Rahman at (717) 509-7237, or by email at swr@blakingerthomas.com

This update is provided for informational purposes only and should not be
construed as legal advice or as creating an attorney-client relationship
where one does not already exist.