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Family

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ASSIGNMENT # 2- FAMILY RELATED ISSUES

LEG 500- LAW, ETHIC, AND CORPORATE GOVERNANCE

DRA NEKIA HACKWORTH
KARLA ZALDANA
JAN 30, 2012

INTRODUCTION

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave of specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had no taken leave. Eligible employees are entitled to:
Twelve workweeks of leave in a 12-month period for: • The birth of a child and to care for the newborn child within one year of birth • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; • To care for the employee’s spouse, child, or parent who has a serious health condition. • A serious health condition that makes the employee unable to perform the essential functions of his or her job. • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is covered military member on “covered active duty;”

Twenty six workweeks of leave during a single 12 month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave)


1. Explain if it matters that a parent literally had nothing to do with a biological child in order for the child take advantage of the Family and Medical Leave Act (FMLA) to care for that parent.
According to the Act, an employee is entitled to leave “in order to care for the spouse, or son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition” (Halbert, T. & Ingulli, E.,2010, p.137) . This being the ase, it makes no difference if the parent had anything to do with the child requesting the leave; all that matters is that the child (employee) is entitled to the leave according to the Family and Medical Leave Act’s guidelines.
Other sections of the law guarantees that an employee who returns from a leave of absence can come back to his or her position or one with equal benefits, pay, and employment condition, and no stand the chance of being terminated as a result of the leave. Employees must give 30 days advance notice of their intentions of going on FMLA. The employer can then accept or reject the employee’s leave. If the employer rejects the FMLA the must submit in writing within two day. Once leave is granted to the employee, all decisions are final, and the company cannot retract this leave.
Employers are also not allowed to inquire the details behind an employee’s decision to go out on leave, if the employee does not wish to specify. Employers can only request a physician’s note stating that their employee will be unable to work for that amount of time. Employers can also ask about the timeframe that an employee expects to be back of work.

2. 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 business affects a company’s Family and Medical Leave Act coverage status and the eligibility of its employees. The FMLA statutes do not cover an employer with less than 50 employees. If the business does meet the employee count requirement, and employee is only eligible if he works at or within 75 miles or an FMLA-eligible work site. Tony is eligible, but no in the way Herman describes. The act defines the number of employees to include only those have worked at least 1,250 during the previous 12 months. [29 U.S.C Section 2611(2)]
The company’s payroll record is the source for establishing that an employer qualifies for FMLA coverage. If an employee is present on a company’s payroll on the firs day of the week then the employee is counted as employed for that week.

3. Explain whether Herman can or cannot imply that if Tony take a leave of absence under the FMLA, he may not have a job when he returns.

Basically the FMLA defines who is eligible under the act and under what circumstances employees may take a leave of absence for family or medical purposes. Normally, it is not up to the employer to make this decision. The employer can attempt to make a reasonable determination about the veracity of an employee’s reasons for taking a leave of absence under the act. No Herman cannot imply that Tony will not have a job if he takes a leave of absence under the FMLA, because under FMLA the job restoration protection that states.
4. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.

The Family and Medical Leave Act (FMLA) are administered by the Wage and Hour Division (WHD). The FMLA provides a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reason. The Act is intended to promote the stability and economic security of families as well as the nation’s interest in preserving the integrity of families.
The 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 day.
The law also cover all public agencies (states and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the “50 employee” test. Title II of FMLA covers most federal employees, who are subject to regulations. Issued by the Office of Personnel Management.
To be eligible for FMLA leave, an individual must meet the following criteria: • Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people; • Have worked at least 12 months (which do not have to be consecutive) for the employer; and • Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

Basic Provision/Requirements
The FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave for specified family and medical reasons. Eligible employees are entitled to: • Twelve workweeks of leave in any 12-month period for: o Birth and care of the employee's child, within one year of birth o Placement with the employee of a child for adoption or foster care, within one year of the placement o Care of an immediate family member (spouse, child, parent) who has a serious health condition o For the employee's own serious health condition that makes the employee unable to perform the essential functions of his or her job o Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation • Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member (Military Caregiver Leave)

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.
Eligibility all employees who have completed 12 months of Federal government services, regardless of appointment or pay schedule, are eligible. The service need not be recent or consecutive or in a position subject to the Leave Act. Certain employees covered by Title I of the Act. e.g., unscheduled employees, commissioned officer of the NOAA Corps, and presidential ill appoints whose rate of basic pay is equal to or exceeds executive Level V are also eligible.
Entitlement employees are entitled to 12 administrative weeks of unpaid leave in any 12-month period for one or more of the following; • birth of a child and care of the newborn, • adaptation or placement of a child for foster care • care of a family member with a serious health condition or • Care and treatment for a personal serious health condition.
That makes the employee unable to perform any one or more of the essential functions of his or her position. Part-time and mixed tour employees have a prorated entitlement equal to 12 times the average number of hours in their regularly scheduled administrative workweek. Note that an employee working two part-time positions may use only the amount of FMLA leave earned in each part-time position for absences from that position.

CONCLUSION

Changes to the FMLA that were published on November 17, 2008 and are effective as of January 16, 2009 are in italics.
Prior to 1993, when the FMLA (Family and Medical Leave Act) was passed, an employer was not required to give leave to an employee who either was too ill to work or needed time off to care of a newborn or newly adopted child or for a seriously ill parent, child or spouse. If you took a break from work for any these reasons, you might not have job to back to.
The FMLA allows eligible employees to take up to 12 weeks of unpaid leave in any 12 month period.

.

REFERENCES

www.dol.gov/compliance/guide/fmla.ll

www.hr.commerce.gov

www.about.com/federal
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