Family Related Issues

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.
Families in America today look different than they did in the past. The families of today have changed complexion, changed composition, and changed expectations, but not matter what the change is within a family, its function in our society remains the same. The function of a family is to provide for and nurture the development of future generations.
The Family and Medical Leave Act (FMLA) also allows eligible employees to take up to 12 weeks of job-protected leave to care for a spouse, child, or parent with a serious health condition. According to the FMLA statute, a “parent” is any person who is the biological parent of the employee or who stands, or stood, in loco parentis (in place of the parent) to the employee when the employee was a child. A person is considered “in loco parentis” if he has day-to-day responsibilities to care for and financially support a child, or in the case of an employee, who had this type of responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary. Parents-in-law, however, are not included within the meaning of “parent.” (Michelle’s Law (Public Law 110-381), 2009)
Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
The FMLA does not apply to everyone it doesn’t apply to small employers, or to employees who have been hired recently. The exceptions to coverage are few; they are worth exploring every time an employee requests leave. Is the employer covered by the FMLA? And if the employer is covered, is the specific employee who is requesting leave eligible for FMLA benefits? FMLA applies only to employers who have had 50 or more full, part-time, or temporary employees on their books for 20 or more weeks during the calendar year or during the last calendar year. Once an employer has had 50 employees on its books for 20 weeks, the employer is covered by the Act for both this year, and for the next calendar year. Employers not covered by the FMLA may establish their own policies about the length of leave available to employees.

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.
When the Family and Medical Leave Act was first passed in 1993, it was a huge step forward in establishing the flexibility and security that the American workforce needed to care for our future generations. It allowed employees to take unpaid leave to care for their kids without the fear of losing their jobs.
Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a “no fault” attendance policy. If a bonus or other payment, however, is based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance, and the employee has not met the goal due to FMLA leave, payment may be denied unless it is paid to an employee on equivalent leave status for a reason that does not qualify as FMLA leave. An employee has no greater right to restoration or to other benefits and conditions of employment than if the employee had been continuously employed.

The Company, however, cannot guarantee job restoration to the former or an equivalent position for employees who are among the highest paid 10% if the employee's absence will cause substantial and grievous injury to the Company's operations. (Wage and Hour Division)

Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.
The Family Medical Leave Act of 1993 only applies to immediate family parent, spouse, and child. In 2008 amendments to the FMLA for military family members extend the FMLA’s protection to next of kin and to adult children. In June of 2010 The Department of Labor clarified the definition of son and daughter under the FMLA, to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship and specifying that an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child (Wage and Hour Division).

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.
Even if the company has more than 50 employees, however, there are times when the particular employee requesting the FMLA leave is not eligible for it and the company does not have to comply with respect to that employee.
There are two categories of non-eligible employees. First, employees are not covered until they have worked for the company for more than 12 months (not necessarily consecutively), and until they have worked 1,250 hours during the last 12 months. Recent hires, therefore, are not automatically covered under the FMLA. If there is any doubt about whether an employee who is requesting FMLA leave has reached his service requirement, the employer should check his length of employment before granting or denying leave. If an employer grants FMLA leave by mistake to an ineligible employee, the employer cannot change its mind once the leave has begun; the employee will be protected.
A second exception exists for employers with scattered work sites, such as like construction companies. Even if the employer has more than 50 total employees in its home office and on crews in different regions, employees are eligible under the FMLA only if they are employed at a work site where there are 50 or more employees within a 75 mile radius. If fewer than 50 employees are hired for job sites that are within a 75-mile radius of each other, those crews are not covered by the FMLA (Thomson Reuters , 2010).

References

Michelle’s Law (Public Law 110-381). (2009, June). Retrieved January 25, 2011, from ProView: http://www.proviewbenefits.com/company/news/article.aspx?PRPRI=228.standard
Thomson Reuters . (2010, February). Understanding the Family and Medical Leave Act of 1993. Retrieved January 26, 2011, from Findlaw: http://employment.findlaw.com/employment/employment-employee-family-medical-leave/employment-employee-family-medical-leave-fmla.html
Wage and Hour Division. (n.d.). Retrieved January 25, 2011, from US Department of Labor: http://www.dol.gov/