Family Related Issues
Legal 500

1. 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 to care for the parent.
The guidelines for the family medical leave act do not detail nor require parental involvement. Therefore one should not infer an absent parent would not qualify because whether or not the parent had an impact on raising the child is not included in the qualification. Although it is not outlined that a parent must have a certain level of involvement in the child’s life there have been cases where employees have been awarded accommodation per FMLA for grandparents or other family members depending on the level of commitment in the raising of the child. For example grandparents and aunts that assumed the responsibility of primary caregiver have been awarded the approval. “The leave requirement is ‘in order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition (Halbert, & Ingulli. 2010)”. 2. Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
Size of the business does have an impact on employee eligibility under the FMLA companies with less than 50 employees are not subject to the job protection under the Family Medical Leave act. Although this may not be fair to the employees it is a safeguard to the employers. Although FMLA is unpaid leave the company could suffer tremendously attempting to protect the employee’s job for up to twelve weeks. OSHA explains the company size requirement by saying “FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.” 3. 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.
No, since Rally Motors employs more than 50 employees and Tony meets the requirement for leave, Herman must comply. Herman could always say Tony misinterpreted what he was saying. “I didn’t mean I would fire him but the nature of the business and the particular season we are in other employees will steal his customers. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions. 4. Describe who is covered under the Family and Medical Leave Act (FMLA) of 1993.
The purpose of FMLA is intended to promote the stability and economic security of families as well as the Nation's interest in preserving the integrity of families. (French, 2011)
FMLA covers the absence for medical care for Mother, Father, Spouse, and Children of any employee. Who has been employed for a minimum of one year. The Basic Provisions or Requirements outlined by the federal government are: The FMLA provides that eligible employees of covered employers have a right to take up to 12 weeks of job-protected leave in any 12-month period for qualifying events without interference or restraint from their employers. (French, 2011)
“The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons: Birth and care of the employee's child, or placement for adoption or foster care of a child with the employee; Care of an immediate family member (spouse, child, parent) who has a serious health condition; or Care of the employee's own serious health condition. If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. Usually, an employee may elect (or the employer may require) the use of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.” ("Family and medical," 1993)

5. 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.

The company has no ability to determine who is eligible for block leave however they can only award based upon the federal regulations and the supporting documentation provided by the medical provider. Since the job protection is a right. According to OSHA “taking intermittent leave for the placement, adoption, or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth and care of a child is also subject to the employer's approval. ("Family and medical," 1993)

Reference

French, R. (2011). Benchmark institute . Retrieved from http://www.benchmarkinstitute.org/t_by_t/labor/family_medical_leave.htm

Halbert, T, & Ingulli, E. (2010). Law andethics in the business environment. Mason, OH: Cengage Group.

U.S. Department of Labor, Employment Standards Administration. (1993). Family and medical leave act (WH Publication 1418). Washington, DC: U.S. Government Printing Office.