FAMILY RELATED ISSUES: FAMILY MEDICAL LEAVE ACT

Family Related Issues: Family Medical Leave Act
The Family and Medical Leave Act was passed by congress and signed by President Clinton in 1993. The Act was established because there was no low that dismissed ill or injured workers who missed too many days at work without termination. Based on the information found on the United States Department of Labor website, the FMLA provides an entitlement of up to 12 weeks of job-related unpaid leave during any 12 month eligibility period. The FMLA covers employees, for 1) birth and care of the eligible employees child or placement of a child in foster or adoptive care 2) care of an immediate family member (spouse, child, parent etc.) who has a serious health condition or 3) to care for an employee’s own serious health condition (Solis, Updated 2010). I. Explain if it matters that a parent literally had nothing to do with a biological child in order for the child to take advantage of the Family and Medical Leave Act (FMLA) to care for that parent.
Code § 825.122 (b) Parent. Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined in paragraph (c) of this section. This term does not include parents “in law.
Based on the description of a parent in the above code, Mr. Sulka had every right to take family leave to care for his elderly father when he comes home from the hospital. Employees are entitled to take personal time from work to care immediate family members, such as parents, whether there was a relationship between the two of them or not.
Therefore Herman must allow Tony to take personal time to care for his father after surgery. It does not matter that Tony Sulka and his father did not have a close relationship, his father is still his biological relative. Under the FMLA Tony has all the right to take time from his job to care for his father. If Herman should terminate or threaten to terminate Tony Sulka he is in violation of the Act because it is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA (Department of Labor [DOL], 1993, revised 2010, ¶ 4). The law also states when an employee returns to work from leave, the employee can continue in their position on one of equivalence. The employee’s benefits, pay and employment conditions returns to normal without losing any benefits that accumulated prior to the leave including but not limited to seniority. The employee becomes re-eligible after they have worked a definite number of hours during a 12 month period (Halbert & Ingulli, 2010, p. 137). As an employer, Herman may not warn, suspend or discharge Tony for taking family medical leave. The time Tony takes off cannot cause him an adverse evaluation, be denied a promotion, count toward absences under the company’s attendance policy or take other actions against him. When Tony’s leave is complete, Herman must place him back in his normal position with the same pay and benefits. These regulations are also found in the Family Medical Leave Act in which Tony is entitled to use. II. Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
Based on facts from the Department of Labor factsheet number 28 under “Employee Coverage”, states “ all public agencies, including state, local, and federal employers, local educational agencies, and private sectors who employed 50 or more employees in 20 or more work weeks are covered under the Family and Medical Leave Act of 1993. Herman owns a very productive dealership and has both full and part-time employees working for him. However, the number of employees does determine whether Tony can take three weeks off or not. If there are less than fifty employees, Tony may need to find another way to take time off without risking his employment. III. Explain whether Herman can or cannot imply that if Tony takes a leave of absence under the FMLA, he may not have a job when he returns.
Herman is not allowed to threaten Tony’s position in he takes a leave of absence based on the Family and Medical Leave Act. On the other hand, if Tony is a highly paid or “key” employee, Herman can deny reinstatement of Tony to his position. IV. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.
The Family Medical Leave Act helps employees balance work and family responsibilities by taking an unpaid leave for certain medical reasons. The FMLA applies to all employers in the private sector who engages in commerce or any industry affecting commerce. Employers that have 50 or more employees each working day must have worked at least 20 calendar weeks. As previously stated, the law covers all public agencies including local, education agencies and state and federal government. This area does not need to meet the 50 employee rule.
To be eligible for coverage, an individual must meet the following criteria: * They must be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people * They must have worked at least 12 months for the employer or * They must have worked at least 1250 hours during 12 months immediately before the date the FMLA begins (Solis, Updated 2010). V. Explain the extent to which an employer can make his or her own determination as to the eligibility of an employee under the Family and Medical Leave Act.
In an article written by Neil Kokemuller, employers are bound by eligibility and entitlement benefit that guarantee qualifications for employees covered under The Family and Medical Leave Act. Employers do not have the right to decide whether an employee can take leave, monitor qualifying work criteria or enforce the right for employees to take unpaid leave (Kokemuller, 2010).
In conclusion, the Family and Medical Leave Act made it possible for many employees to care for themselves, their children, and their parents without being penalized. No one knows when they may need to take time from work to care for unforeseen health issues or pleasant additions to a family. This Act makes it all possible knowing that they will remain insured and will have a position to return to when the situation improves.

References
Department of Labor. (1993, revised 2010). The Family and Medical Leave Act of 1993 [Fact sheet]. Retrieved from http://www.dol.gov/whd/regs/compliance/whdfs28.htm
Halbert, T., & Ingulli, E. (2010). Laws, ethics, business: an introduction I. In Law and ethics in the business environment (p. 137). Mason, Ohio: Cengage Learning.
Kokemuller, N. (2010). Can an employer make his or her own determination elgibilty employee under FMLA. Retrieved February 6, 2012, from http://smallbusiness.chron.com/“can_an_employer_make­_his_or her_own_determination_eligibility_employee_under_FMLA”
Solis, H. S. (Updated 2010, 1993). Family and medical leave (Department of Labor). Retrieved from http://www.dol.gov/dol/topic/benefits-leave/fmla.htm
South-West Cenage (Producer). (2008, ). Electronic Surveillance of Employees [Motion picture]. In J. J. Osbourn (Executive Producer)(Producer), Drama of law. Podcast retrieved from : www.swlearning.com/blaw/wdvl/wdvl/student/dr/dr_13.htmlCached