Family Related Issues: Balewa Sample

Roreita Walker Law and Ethics in the Business Environment July 23 2011

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.
It does not matter if the parent had nothing to do with the biological child. The employee can still take advantage of the Family and Medical leave Act. The law interpretation of parent is as follows (7) PARENT.--The term "parent" means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter. (FMLA) by the interpretation I would say it does not matter how much time the biological parent spent with the child or if he or she was actively involved, the child still has a legitimate claim for leave to take care of that parent. There has to be a clear definition of the word parent, if not it would open the door for Employers to have their own interpretation of the law. If the FMLA act was not specific in its definition of the word “parent “then employers would dismiss your claim if they felt as if that did not meet their definition of a parent. So my answer is a biological parent that did not have anything to do with their child does fall under the FMLA ACT, regardless of the parent’s involvement in the Childs life and I believe it to be a fair Law.
Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
The size of the business can have an effect on whether Tony is eligible for family leave under the FMLA. This is some information on the size and eligibility taken from a chapter of Family and Medical Leave Act (FMLA) of 1993. http://www.dol.gov/whd/fmla/fmlaAmended.htm July 2011 (B) EXCLUSIONS.--The term "eligible employee" does not include
(i) Any Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code (as added by title II of this Act); or
(ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50. From the transcripts Tony said “small you’ve got more than fifty employees, if you count everyone.” Herman said “not full-time employees. If l let you take time off, everyone will ask for it.” When you look at the interpretation of the Law, it doesn’t state that the 50 employees or more have to be full-time. With that said to answer the question the size of the business does matter when an employee makes a claim for leave under the FMLA.
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 cannot imply that if Tony takes a leave of absence under the FMLA, he may not have a job when he returns. Because the law clearly states that employees are protected under Sec. 104 and 105 in the FMLA . These are some of the excerpts taken for the FMLA act.
UNLAWFUL ACTS
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.

SEC. 104. EMPLOYMENT AND BENEFITS PROTECTION. (a) RESTORATION TO POSITION.-- (1) IN GENERAL.--Except as provided in subsection (b), any eligible employee who takes leave under section 102 for the intended purpose of the leave shall be entitled, on return from such leave-- (A) To be restored by the employer to the position of employment held by the employee when the leave commenced; or.
• (ii) LEAVE DUE TO SERIOUS HEALTH CONDITION OF FAMILY MEMBER.--The certification described in subparagraph (A)(i) shall be sufficient if the certification states that the employee is needed to care for the son, daughter, spouse, or parent who has a serious health condition on the date that the leave of the employee expired.

SEC. 105. PROHIBITED ACTS. (a) INTERFERENCE WITH RIGHTS.-- (1) EXERCISE OF RIGHTS.--It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title. (2) DISCRIMINATION.--It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title. As we read the following passages taken from the FMLA we can clearly see that an employer cannot imply that an employee’s employment is at risk. This could be a scare tactic that some employers may use to deter employees claim for leave under the FMLA act. From the scripts from Tony’s conversation with his boss there was an indication that Tony did his research about FMLA before approaching his boss; it’s safe to say he has an idea that if his employers try to deny his claim for FMLA he would win the claim in a court of law .

Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.
These are the following people covered by the Family and Medical LEAVE Act of 1993 The birth and care of a newborn child of the employee; The placement with the employee of a son or daughter for adoption or foster care; The care for a spouse, son, daughter, or parent with a serious health condition; Medical leave employee when the employee is unable to work because of a serious health condition; or for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

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 employer has every right to make his or her own determination as to the eligibility of an employee under the family and Medical leave Act. Employers may require that an employee’s request for leave due to a serious health condition affecting the employee or a covered family member be supported by a certification from a health care provider. An employer may require second or third medical opinions (at the employer's expense) and periodic recertification of a serious health condition. An employer may use a health care provider, a human resource professional, a leave administrator, or a management official – but not the employee’s direct supervisor – to authenticate or clarify a medical certification of a serious health condition. An employer may have a uniformly-applied policy requiring employees returning from leave for their own serious health condition to submit a certification that they are able to resume work.
Family and Medical Leave Act (FMLA) of 1993. http://www.dol.gov/whd/fmla/fmlaAmended.htm July 2011