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Is your company or client an FMLA class action waiting to happen? That was one of the questions asked at the Upper Midwest Employment Law Institute, last month in St. Paul, Minnesota. Session presenter Nancy J. Wolf of the St. Paul law firm of Briggs & Morgan, P.A., provided the attendees with practical “how to” advice on implementing the FMLA correctly and effectively. According to Wolf, the 10 biggest FMLA Mistakes employers make are: � Employers are granting FMLA leave for a serious health condition without first evaluating whether the employee/family member is incapacitated by a serious health condition. � Employers fail to ask employees for detailed enough explanations of absences to determine if the absence is FMLA-covered. Employers should feel free to gather detailed information from employees about the reason for each day of absence. � Employers do not keep complete, detailed and accurate records of when FMLA time is used. As a consequence, employers may not legally discipline or terminate an employee for using FMLA time. � Employers fail to give written and timely FMLA notice. Wolf suggests that employers not make each individual supervisor or manager responsible for FMLA determinations and notices. � Employers make each individual supervisor or manager responsible for FMLAdeterminations and notices. � Employers do not avail themselves of their right to transfer an employee on intermittent FMLA leave to a position of less responsibility. Note: The employee must be kept at the same level of pay and benefits while in the “new” position. � Employers do not avail themselves of their right to provide even exempt employees with unpaid FMLA leave. Wolf states that employers may legally “dock” exempt workers in pay for intermittent FMLA absences without risking an FLSA violation if the exempt employee is a salaried executive, administrative, or professional employee. � Employers fail to recognize the FMLA’s almost absolute reinstatement requirement. The failure to reinstate could lead to possible litigation. � Employers fail to fulfill the Americans with Disabilities Act (ADA) requirements (where a “disability” exists) while an employee is using intermittent leave. Wolf explains that failing to accord an employee full ADA rights — in addition to full FMLA rights — exposes the employer to possible disability discrimination litigation. � Lastly, employers fail to fulfill ADA leave-of-absence obligations after FMLA obligations have ended. After FMLA leave ends, employers should continue to provide leave if necessary as an ADA reasonable accommodation. Wolf commented that some employer mistakes arise from lack of knowledge, and some from negligence or inadvertence. However, all can be remedied. Of particular note, Wolf stated that employers are unnecessarily living with workplace disruptions caused by intermittent leave, but employers do not have to do so. Employers may temporarily reassign the job duties of an employee on intermittent leave to be sure the work of that employee is efficiently performed. Wolf encourages employers to explain to the employee the reason for the transfer, so that the employee understands the reason for the apparent “demotion.” � 2000, CCH INCORPORATED. All Rights Reserved.

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