Mirna Phillips

October 30, 2011

Family and Medical Leave Act

Dr. Caldoroda

Family Related Issues

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 (FMLA) to care for that parent.

Under FMLA a parent is defined as the biological parent of an employee or an individual who acted as a parent to an employee when she or he was a child. Parents not literally caring for the biological child has no resolve as to whether the child should be granted leave to care for the biological parent.
An employee has the right to take a leave to take care for spouse or domestic partner, child or parent, child or parent with a serious health condition, need not take leave continuously so long as the leave does not exceed a total of twelve work weeks during the twelve month period. The twelve work week period is measured backward on a rolling basis from the date when an employee first uses any FMLA leave.
Even though there is a parental distance between Tony and his dad, he was determined to care for his ill father. This does not give Herman the right to deny him his last opportunity to have a father son relationship. Herman was supporting Tony in his decision to care for his sick father, until he advised that a leave would be needed. Upon the discussion Herman violated the FMLA exceptional and special rules, he refused to offer Tony intermittent or reduced health leave or alter means to keep him employed. However, Herman did offer a threat of being unemployed if Tony decided to take the leave.
Even if a biological parent didn’t have anything to do with the biological child, the child may take advantage of the Family and Medical Leave Act. The point is that the law does not make a distinction. The parent according to the Family and Medical Leave Act must be either a biological parent or the person who acted as a parent when the employee was a child. So in either case the child may take advantage of the Family and Medical Leave Act. It does not matter if the parent had nothing to do with the biological child.

2. Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.

According to the Family and Medical Act the size of the business can have effect whether tony is eligible for leave under Family and Medical Act.
To qualify for the FMLA mandate, a worker must be employed by a business with 50 or more employees within a 75 mile radius of his or her worksite, or a public agency, including schools and state, local and federal employers, the 50 employee threshold does apply to public agency employees and local educational agencies. (NPWF, 2010)
Tony was a great salesman and would be needed for the new car model that would be sold at Rally Motors. Herman had no cause for denying Tony Family leave, even though he was in desperate need for Tony to keep the quota of business high, Herman did not only reject Tony request for three work weeks of leave instead of his full twelve weeks he is legally entitled to according to FMLA but he threatened him to get his job lost.

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.

If Tony qualifies for the FMLA and Herman says he may not have a job when he returns, then Herman is not only wrong, but subjects the company to penalties.
The law states: a) to be restored by the employer to the position of employment held by the employee when the leave commenced or b) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. An employee 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. Not be counted against the employee under a no fault attendance policy.
According to FMLA fact 28 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 condition of employment. 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.

4. Describe who covered by the Family and Medical Leave Act (FMLA) of 1993.

The eligible employee under the Family and Medical Leave Act is one that has worked for the company for consequently 1,250 hours during a 12 month period before the start of the leave. Further, if there is a husband and wife working for the same firm, a combine of twelve week leave is allowed for birth, adoption or to care for a parent with serious health condition. The Family and Medical Leave Act 1993 cover employees themselves and allow them leave if they have any serious health condition.

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 Family and Medical Leave Act: The employer can make his or her determination as to the eligibility of an employee by determining if the employee has worked for 1,250 hours during the previous twelve month period. If the employee is not eligible she must be given a notice within two days of the application. If the employee does not give notice for 30 days for foreseeable events, then the employer may make her own determination as to the eligibility or otherwise. In addition, the employer is allowed to delay the onset of Family and Medical Leave Act leave. Further, the employer can ask for medical certification for the need for Family and Medical Leave act and can also ask for medical fitness certification when the employee returns. The employer can periodically ask the employee for reports and decide upon the eligibility or otherwise of the employee. If the employer gets a reply that provides grounds for termination of the Family and Medical Leave Act he can do so. For instance, the employer can terminate the Family and Medical Leave act leave if the employer informs the employer that they do not intent to return to work. Similarly, if an employee has fraudulently received family and Medical Leave Act leave then the employer can terminate the employment and the Family and Medical Leave Act leave.

References: www.employer-employee.com/fmla.html. www.workrightspress.comfmla