ASSIGNMENT #2 – FAMILY RELATED ISSUES

ALICE F. EDDINGTON

PROFESSOR RHONDA J. WILLIAMS EVANS

LAW, ETHICS, AND GOVERANCE
LEG 500
JANUARY 26, 2012

Family and Medical Leave Act (FMLA)
What is the Family and Medical Leave Act (FMLA)? It is an act that was passed in 1993; it is a national policy that grants workers up to twelve weeks of unpaid leave in four situations. The four are: pregnancy, caring for an infant, this includes new borns, adoptions, and foster children that have been placed in your home, caring for a seriously ill relative, or to allow the employee to recover from a serious injury or surgery. (Halbert, 2010)
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 the parent.
According to the FMLA, a parent is the biological parent of an employee or any person 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 (DOL, 2009).
Tony’s father was never in his life, but now that his father is sick, he is willing to take care of him. Herman has no right to tell him that he can’t take care of him because he was never there. When he thought he was putting him in a nursing home, he was all for letting him take time off for that. But when he asked for leave to check him out of the nursing home and bring him home so that he could take care of him, his job was threaten. Herman violated the FMLA exceptional and special rules, by refusing to offer or allow Tony to take leave. He didn’t want to work with him, when he offered the idea that he should be able to take time off because they had part-time employees. These employees can work full-time until he returns; instead he told him that if he took leave then he might not have a job when he returns. An employee has the right to take leave to care for a spouse or domestic partner, child or parent with serious health conditions; they don’t need not take leave continuously as long as the leave does not exceed a total of 12 working weeks during the 12 month period. The twelve work week period is measured backwards on a rolling basis from the date when the employee first used any FMLA leave (Halbert, 2010)
Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
Yes, in order to qualify for the mandatory FMLA, a worker must be employed by a business with 50 or more employees within a 75 mile radius of his or her work site, or a public agency, this includes schools, state, local, and federal employers. The 50-employee threshold does not apply to public agency employees and local educational agencies (NPWF, 2010). The company had more than 50 employees; Herman chose not to use his part-time employees to cover for Tony. He was more interested in getting ready for the new model sales. He tried to make him feel guilty for asking to take leave by saying; the dealership was the only family that he has ever had. Tony is a top seller at the dealership; he thought it was ok for Tony to care for his father when he first mentioned that he was sick. He even made note to say that his father was old and had taken care of him, his tuned changed when Tony told him that he barely knew him and that his mother raised him. When the subject of setting him up in his apartment after his surgery came up, Herman made it seem like his father’s condition wasn’t important anymore. He not only denied him the 3 weeks that he requested, but he also denied the 12 weeks that is legally allowed to him by the FMLA. He told him to go ahead and that he might not have a job when he returns.
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 can imply that if he takes the leave of absence, he may not have a job when he returns. According to FMLA, Tony is allowed to take a leave of absence and still be legally covered, to care for his ill father. Herman should assure Tony that his job will be secure and all of his benefits, pay, and any employment conditions that were in place before his leave will remain the same (Halbert, 2010). The use of FMLA leave by an employee can’t result in the loss of employment benefits that was earned or entitled before leave, nor can it be counted against them under a ‘no fault’ attendance policy. Fact 28 of the FMLA, states that upon return from leave, an employee must be restored to their original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Payment for bonuses may not be paid to an employee that have not met the goal of hours worked , product sold, perfect attendance due to FMLA leave, unless it is paid to the employee on an equivalent leave status for a reason that does not qualify for FMLA leave (DOL, 2009).
Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.
The FMLA applies to all public agencies, including state, local, federal employers, schools, and private sector employers who employed 50 or more employees in 20 or more work weeks in the current or preceding calendar year, this includes joint employers and successors of covered employers (NPWF, 2010). If the employee is eligible he or she may take the equivalent of up to 12 weeks of FMLA covered leave in a 12 month period for a qualifying event. The qualifying events are birth of a child, the placement of a foster child, caring for a parent, or serious health conditions or injury. To be covered by FMLA the person being cared for during the leave is a child, parent, spouse, or the employee. The employee must have been employed by the state at least 12 months and for at least 1250 hours of service during the 12 month period immediately preceding the start of the Family and Medical Leave.
The regulations of FMLA require the employer to confirm that an employee is eligible for FMLA leave at the time it is requested. According to the FMLA, the regulations clarify that an employee is eligible for FMLA leave as long as the employee has worked 12 months. There can be a break in service for up to 7 years and even longer if the break is caused by a military obligation. If the employee is not eligible for FMLA leave at the time of the request due to the length of time on the job, he or she may become eligible while on leave. This is because the leave time counts toward length of service. FMLA leave should be set aside where the employee has met the 12 month requirement. (DOL, 2009). (825.110)
An employee doesn’t need to meet the eligibility tests again to re-qualify for additional leave within the 12-month period if the additional leave is requested for the same qualifying reason.

REFERENCES
Halbert, T., & Ingulii, E. (2010). Law and Ethics in the Business Environment: 2010 custom edition (6th ed.). Mason, OH: South-Western Cengage Learning.
NPWF. (2010) National Partnership for Women and Families: Working Families Need Paid Family and Medical Leave. Retrieved from http://www.nationalpartnership.org/site/Doc, on January 26, 2012
DOL. (2009) U.S. Department of Labor: Wage and Hour Division. Family and Medical Leave Act. Retrieved from http://www.dol.gov/whd/fmla/index.htm, on January 26. 2012