Building a Paper Trail: Leave & Disability Administration Correspondence
By Sheri Pullen
Employee notifications and correspondence are a critical piece of any successful leave and disability administration program. In addition to apprising an employee of key steps needed to move forward with a leave request, notifications and their content serve a broader purpose — building a paper trail.
When everything goes favorably with a leave of absence, notifications aren’t given a second thought. The employee requests a leave, and in a timely manner, submits supporting documentation; the leave is approved, and ultimately, the employee is reinstated to his or her job. In these scenarios, many employees barely read the notifications they receive.
All of that changes if an employer denies a leave request, or worse, terminates the employee. In these cases, most employees apply a greater level of scrutiny when reviewing notifications. If employers don’t have their ducks in a row and neglected to send a letter, or even just excluded one required paragraph, that can spell big trouble, especially if the employee files a lawsuit.
Consider Dusik v. Lutheran Child & Family Servs. of Illinois, in which a federal district court in Wisconsin rejected the employer’s motion to dismiss an employee’s claims of FMLA interference and retaliation based largely on the alleged lack of required employee notifications.
Amanda Dusik, a Lutheran Child & Family Services (LCFS) employee, went on medical leave after injuring her leg and undergoing surgery. Although LCFS appropriately notified Dusik that her leave would be designated as FMLA leave, Dusik claims LCFS did not inform her of her FMLA entitlement balance or the amount of leave that would count against her FMLA entitlement, both of which must be included in the FMLA designation notice per 29 C.F.R. § 825.300. Failure to provide this information can be considered as interference with an employee’s FMLA rights.
Approximately three and a half months into her leave (or about two weeks after her FMLA entitlement exhausted), Dusik was terminated. However, Dusik charged that LCFS never notified her about her FMLA entitlement exhausting, nor did it warn her that her employment would be terminated if she didn’t return to work. LCFS’s failure to notify the employee of FMLA exhaustion, coupled with the deficient designation notice, led the court to conclude that LCFS “was suspiciously uncommunicative,” lending credence to Dusik’s claim of FMLA retaliation.
Dusik v. LCFS is just one example of how employers can get into hot water when they neglect to send required notifications. In Vannoy v. Fed. Reserve Bank of Richmond, (4th Cir. 2016), John Vannoy prevailed on an FMLA interference claim when the employer neglected to inform him of his reinstatement rights after FMLA leave. In both Conoshenti v. Pub. Serv. Elec. & Gas Co., (3d Cir. 2004) and Ragsdale v. Wolverine World Wide, Inc., (2002), the courts concluded that failure to provide notice of FMLA rights could count as FMLA interference.
On the other hand, the sheer number of notifications, combined with the volume of information employers are required to include in those notifications, can overwhelm employees and employers alike. Thus, it’s no surprise that many employers struggle with striking the right balance between providing all legally required information and making their employees’ heads spin.
So what are employers to do? To ensure compliant correspondence over the course of an employee’s leave of absence, it might make sense to hire an external provider who administers a comprehensive leave and disability program including notifications.
When employers reach out to us for leave and disability management, we see a couple of common patterns with their notifications. Some employers stuff as much information as they can into notifications, even if the information isn’t legally required or relevant to the employee. Conversely, others pare down their notifications to the bare minimum, providing only legally required content and nothing else. As you might suspect, the best solution lies somewhere in the middle.
Both of those extremes make our list of common correspondence pitfalls.
Isn’t it a “better safe than sorry” approach to pack as much information as possible into an employee letter? This is not necessarily the case as information overload will only confuse and overwhelm the employee. A long letter full of dense legal language will put the employee to sleep before the second page, and the employee might miss critical information.
Legalese or Overly Complicated Content
When including legal content, there’s a tendency to quote regulation texts verbatim. Avoid this mistake. Nobody enjoys reading regulations, except (maybe) lawyers, and even fewer people understand legal text as written. While including regulatory language verbatim might technically lead to a compliant paper trail, it’s not helpful if the employee doesn’t understand it. The average reader has little leave and disability experience, and communications should be written at an eighth-grade reading level.
We’ve all heard, “when it doubt, leave it out,” and likely thought, “well, that doesn’t apply to leave and disability correspondence.” But it does — for all content that is not legally required! The paper trail should be concise and highlight what the employee needs to know right now. For example, an FMLA eligibility notice doesn’t need detailed return-to-work instructions, or pages of policy language an employee can access on the employer’s Intranet site.
The Bare Minimum
A short concise letter is great, as long as it includes all legally required language and any other information the employee needs to move forward with the leave. Including only legally required information with little explanatory text can leave employees needing more information, forcing them to call human resources or the administrator for help.
A Better Way
Now that we’ve examined what to avoid when creating leave and disability correspondence, let’s focus on some basic guidelines for crafting effective, compliant notifications that will stand up in court.
Include Relevant Information
In addition to legally required content, include information that helps the employee move forward with the leave. For example, when confirming an employee’s short-term disability claim, include certification requirements and elimination period timing, along with the legally required FMLA eligibility language.
Hire Professional Writers
Professional business writers with leave and disability compliance experience can translate legal language into accessible content an employee will understand. Most external administrators have a content or compliance department with this expertise. Employers that use an in-house leave and disability management team should consider contracting a writer to create notifications, or at least, a collection of boilerplate letters and paragraphs.
Consider the Customer Experience
Keep in mind the recipient’s point of view when drafting notifications. This is particularly important when explaining consequences for not following the proper procedures. For example, under the FMLA, when an employer requests certification, it must inform the employee, in writing, of the consequences of not submitting a complete and sufficient certification (Wallace v. Fedex Corp. [6th Cir. 2014]). This notification must be included in a compliant paper trail, but word it carefully. Try not to scare employees or discourage them from taking leave.
Review for Compliance
A lawyer who is well versed in federal, state, and local leave and disability laws should review notifications to ensure compliance. The ideal program has writers who work closely with an attorney to ensure that all notifications are compliant and easy to understand.
As the court cases summarized here illustrate, neglecting to include required notices and information can lead to litigation and headaches for employers. Because notifications ultimately serve as the paper trail for a leave of absence, compliance with leave laws is paramount. If a case goes to court, notifications are evidence, and they should demonstrate a fully compliant leave and disability program.
However, employers shouldn’t let the bulk of required information overwhelm them. By following the guidelines above, you can build a paper trail that satisfies all legal requirements and facilitates the employee’s leave experience.