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Fmla

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The What, Why, How, and Who of the Family Leave and Medical Act
Douglas E. Jones
MGMT 5843
Current Issues in Human Resource Management

Abstract The Family Leave and Medical Act is one of the acts approved by Congress to allow for an employee to have a certain amount of time to deal with a medical emergency. In this informa-tional paper, I will discuss the 4 major reasons for implementing of the FMLA. I will begin with what is FMLA, that is a thorough definition of FMLA and what it was originally intended for. Then I will proceed with the why of FMLA. Why was this act proposed and why was it passed into law. Next, I will discuss how the FMLA works. How is it supposed to work and is it actual-ly working? Included in this, I will present some case studies to that will present different as-pects of FMLA. And finally I will discuss who uses FMLA. Who was it intended to help, who it is actually helping and who it is harming. Also, I will present case studies that will either confirm or deny if the FMLA is working. Finally I will offer some possible solutions to help to fix what is broken with FMLA and even possibly offer some suggestions for further research on FMLA.
Introduction
FMLA is designed to allow certain family members up to 12 weeks unpaid leave for family emergencies. It was enacted in 1993 but has had some changes made to it due to legisla-tion. FMLA was originally designed to cover both employees and employers. Since its inception, there were some issues with it and the government and several other agencies have worked to-gether to attempt to make FMLA better and more manageable. All employers with 50 or more employees are "covered employers" under FMLA, the same is true for public employers of primary and secondary schools, regardless of the number of employees (Rosseau, 2008, 97). Does this hurt or help the small business? The overall purpose of this paper is to allow you to understand the FMLA. I will discuss the major reasons for imple-menting the FMLA and will offer case studies that either show that it is working or it is not. Fi-nally I will summarize my findings and offer opportunities for further research on this very im-portant topic. What is FMLA? The FMLA’s purpose, as defined by the U.S. Department of Labor (DOL), was to allow employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons (Marczely, 2008). The law said that employees may choose to use their paid leave, or employers may require their employees to use their paid leave for family or medical reasons to cover some or all of the FMLA leave taken (Marczely, 2008). FMLA grants eligible employees two different types of rights: substantive and proscriptive (Burkhart, ). Sub-stantive rights come in 2 distinct forms: First, the right to take up to twelve weeks unpaid leave for family emergency or medical reasons. Secondly, the right of employees to return to their orig-inal position they held before the leave or a position with the same pay, benefits, and other terms and conditions (Burkhart, ,986). Employees only have 1 proscriptive right. The right to freedom from retaliation or discrimination from the employer for exercising their FMLA rights (Burkhart, , 987). For employees to enforce these rights, the FMLA gives plaintiffs a private right of action to seek both equitable relief and monetary damage against employers who violate or deny FMLA rights (Burkhart, , 987). FMLA leave privileges are open for 4 reasons: for the birth and care of the newborn child of an employee; for placement with the employee of a child for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a seri-ous health condition (Solis,2011). Employers of personnel who have FMLA rights need to know exactly what a "serious health condition is". A "serious health condition" is that an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment (Dwoskin, 2010, 37) (Zachary, 2010, 22). Continuing treatment has, in the past, been left up to interpretation. How-ever, new regulations have been set forth that clarify this. The new regulations state that 2 visits within 30 days of the beginning of the period of incapacity, unless extenuating circumstances exist, and that the first doctor visit must occur within 7 days of the first day of incapacity (Dwoskin, 2010, 38-39). Also included in the definition of incapacity is, the employee must be unable to work, go to school, or engage in regular daily activities because of the medical condi-tion, its treatment, or the employee's recovery (Zachary, 2010, 23). FMLA states that care for a son or daughter was redefined to include care for an adult child with a disability. An adult child who has a disability and is incapable of self-care because of this disability is now covered under FMLA (Dwoskin, 2010, 39). There are new versions of FMLA that include a clause for military. In December 2007, legislation was proposed to Congress to extend the FMLA to include family military leave. It was vetoed by President Bush and when Congress went back in session in 2008, an amended version was proposed and President Bush signed it into law on January 28, 2008 (Gisonny, 2008, 10). Under this law, employees can take an unpaid FMLA leave in two military-related situa-tions:
1. An eligible employee will be entitled to a total of 12 weeks of FMLA leave during a 12-month period because of any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces (including, apparently, the National Guard and Reserves) in sup-port of a “contingency operation”.
2. An eligible employee who is the spouse, son, daughter, parent, of the next of kin (i.e. nearest blood relative) of a member of the armed forces, National Guard, or Reserves is entitled to a total of 26 weeks of FMLA leave during a single 12-month period to care for the family member if the individual incurred a serious injury or illness while on active duty (Gisonny, 2008, 11). Even though there are 2 different situations for military FMLA, the maximum entitlement for a 12-month period is 26 weeks (Gisonny, 2008, 11). The two situations for military FMLA included terms like contingency operation, qualify-ing exigency, and serious injury or illness. These terms need to be clarified. Contingency opera-tion means that a military operation is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations or hostilities against an enemy of the United States or against an opposing military force; or results in the call or order to active duty (or retention on active duty) of members of the armed forces during a war or during a national emergency declared by the president or Congress (Gisonny, 2008, 11). The definition of qualifying exigency has not been issued, however DOL offers these potential situations: Making child care arrangements, Making financial and legal arrangements to address the service members absence, Attending counseling related to active military duty, At-tending official ceremonies or programs where family participation is requested by the military, Attending farewell or arrival programs, Attending to affairs caused by a service member's "miss-ing" status or death (Gisonny, 2008, 11). Serious injury or illness means an injury or illness in-curred in the line of active duty that may render the covered family member medically unfit to perform the duties of the member's office, grade, rank, or rating (Gisonny, 2008, 11). FMLA covers the employee for the above stated reasons. Many people do not know about the timeframes set forth by the FMLA. A person who is claiming FMLA does not have to exhaust their FMLA in one lump sum. It can be used in intermittent fashion (Gisonny, 2008, 11) (Dwoskin, 2010, 39-40). While FMLA does not have to be paid leave, employers do have to en-sure that they continue their group health benefits
Why FMLA? In this portion of my paper, we will gain a better understanding of why FMLA was pro-posed. In the past, there was no legislation that protected employees from punishment, harass-ment, or termination after taking time off for illness or injury. Before FMLA was proposed, em-ployers and peers alike could deter a fellow employee or peer from taking this time off. Often the employer could punish their employees for taking what they called "unnecessary" time off. Also, the employee who took the time off could be harassed by other employees or their supervisors. There were even times when an employer could and has in the past, terminated the employee for taking this time off. With the enactment of FMLA, the employee is now covered when an illness or injury is making it needed for them to take time off. This was a long and arduous process and Congress felt that the need to protect and ensure the stability of American families, especially with the dramatic changes in the composition of the workforce (Mello, 2006, 151). There were 4 facts that Congress recognizes that greatly influenced the proposing and passing of FMLA. First, Congress understood that the number of single-parent households was increasing. Secondly, the number of 2-parent households with both the parents working full-time was increasing. Third, early childhood development was aided by the greater participation of parents in child rearing. And finally, the lack of employment policies that accommodated working parents often forced individuals to choose between their own job security and their parental responsibilities ( Mello, 2006, 151-152). Also in the decision making process was the variety of women's groups that be-gan pressuring Congress for some type of family leave, especially now that most other industrial-ized countries have paid-leave programs to protect employees (Mello, 2006, 152). The original intent of FMLA was to cater equally to both employees and employers (Nelson, 2005, 610). Congress intended that the FMLA should not prevent employers from giving employees more leave than the FMLA required (Nelson, 2005, 610-611). The intent of Congress towards FMLA showed the people that Congress believed in the effectiveness of the mandated employee leave policies and showed that Congress believed that FMLA would be cost effective to employers (Nelson, 2005, 611). If you give employees the time needed to take care of family and loved ones, they are more likely to stay in their current positions. This will save money because then the employers do not have to rehire or train someone else to do your job.
How does FMLA work? The FMLA is designed to allow eligible employees 12 weeks of job-protected unpaid leave from work to address family and medical issues (Baum, 2006, 432). Let's discuss what ex-actly is eligible employees. To be an eligible employee there are certain restrictions. The most no-table is the hours restriction. Employees are eligible for FMLA if they have worked for the same employer for at least 12 months and have put in at least 1,250 hours (Danzig, 2009, 64) (Utz, 2007, 17). The FMLA also protects veterans rights. Especially those veterans who had served in the National Guard or Reserve. If a veteran has not completed the 12-month period and is called into active duty, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), then the time that employee spent on military service, as is reemployed by the same employer, must be counted (Utz, 2007, 17) (Rosseau, 2008, 99). The FMLA applies to employers who have at least 50 or more employees (Utz, 2007, 18). For purposes of the 50 employee rule, part-time employees are considered employed each work-ing day of the calendar week, as long as they are maintained on the employer's payroll (Utz, 2007, 18). Employees of U.S. firms stationed at worksites outside the U.S or outside U.S. terri-tories and possessions, are not protected by FMLA (Utz, 2007, 19). There are certain restrictions on employees who want to take FMLA. This is mainly be-cause when the legislation was originally introduced, companies expressed some concerns to Congress. One of those concerns was that the FMLA would be burdensome and disruptive to company operations (Zachary, 2010, 22). Congress looked into it and decided that they would place some restrictions on employees that want to take FMLA. First, the employee must notify their employer that they are taking FMLA leave and must provide medical documentation for the leave (Zachary, 2010, 22). To be more specific, the employees must state at least the following when requesting FMLA leave:
• Whether they have a condition causing inability to perform their job functions (or keeping a covered family member from participating in daily activities);
• How long they expect the absence to last; and
• Whether they (or family members) intend to visit a health care provider or are receiving treatment (Rosseau, 2008, 104).
Additionally, the employee must take leave only for a serious health condition (which I defined earlier in this paper) that makes the employee unable to perform the essential duties of their job (Zachary, 2010, 22). There is a 30-day advance notice requirement for foreseeable leave that em-ployees need to abide by (Rosseau, 2008, 103). When the need for leave is unforeseeable, the current rules state that the employee must provide notice to their employer "as soon as practica-ble" (Rosseau, 2008, 103). As soon as practicable means between 1 of 2 business days as an outer limit (Rosseau, 2008, 103-104). If the unforeseeable circumstances are of the nonemergency type, then the employee should give notice the same business day, or if after business hours, the next business day (Rosseau, 2008, 104). Calling in sick without any explanation will not trigger em-ployer obligations under the FMAL (Rosseau, 2008, 104). If employers request to inquire about an employee's medical condition, they should respond to reasonable requests or risk losing their FMLA protection (Rosseau, 2008, 104). Along with the employee restrictions, there are certain requirements that employers need to abide by also. The general notice requires that employees post an approved DOL notice that summarizes the pertinent FMLA provisions and explaining how employees can file a charge if they believe their rights have been violated (Rosseau, 2008, 102). The notice must be placed in a conspicuous place (Rosseau, 2008, 102) and can be of electronic means, provided all employees have access to the electronic media (Rosseau, 2008, 102). Also included in the posting, employ-ers are additionally required to provide a copy in a company handbook. This company handbook can also be paper or electronic and all the rules above would apply (Rosseau, 2008, 102). Also, employers are required to provide an FMLA eligibility notice within 5 business days of an employee's leave request (Rosseau, 2008, 102). The eligibility notice must include the fol-lowing information:
• Whether they are eligible for FMLA leave, and if not, why;
• How much FMLA leave is available to them in the 12-month period;
• What the essential job functions are for employees required to provide fitness-for-duty certifications; and
• How the FMLA entitles them to unpaid leave for any qualifying absence, regardless of compliance with terms and conditions of the employer's paid leave policies (Rosseau, 2008, 102-103).
If the employer requires a medical certification, then the employer would have to provide the medical certification form along with the above eligibility notice (Rosseau, 2008, 103). Employers must designate absences as FMLA leave within 2 business days of receiving a leave request under the designation notice, under the current rules (Rosseau, 2008, 103). The pro-posed legislation that I talked about earlier, would extend the time frame for this notice to 5 business days from receipt of information that is sufficient to meet the FMLA requirements (Rosseau, 2008, 103). Also included in the designation notice, when a chronic health condition exists, employers must provide written notice of how much leave (if designated FMLA leave) is used during the past 30 days (Rosseau, 2008, 103). Although there is no specific format for the written notice, in the above situation, employers must notify the employee every 30 days of how much FMLA leave has been taken, it could be provided on the employees pay stub, for example (Rosseau, 2008, 103). When FMLA was first proposed, there was no retroactive designation of FMLA leave. In other words, employees could not go to their employees and lobby for past leave time to be des-ignated FMLA leave. Under the new rule, there are two reasons that retroactive designations would be permitted:
1. As long as employers provide appropriate notices, and
2. the employees are not harmed by the failure to designate leave (Rosseau, 2008, 103). As long as there is mutual agreement by both employers and employees, the leave can be retroac-tively designated as FMLA leave (Rosseau, 2008, 103).
Who uses FMLA? As I discussed earlier in this paper, FMLA was intended to allow employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical rea-sons. After it's inception, DOL realized that certain nontraditional families may not be covered by FMLA. With the clarification of the terms "son and daughter", DOL has ensured that an em-ployee who assumes the role of caring for a child receives the same parental rights as others re-gardless of the legal or biological relationship (Smith, 2010, 13). Now, nontraditional families, including families in the lesbian-gay-bisexual-transgender community, have parental rights whereas often they have been denied leave to care for their loved ones (Smith, 2010, 13).

References
[1] K.B. Nelson, "Employer Difficulty in FMLA Implementation: A Look at Eight Circuit Inter-pretation of "Serious Health Condition" and Employee Notice Requirements", Journal of Corpo-ration Law, Spring 2005, Vol. 30 Issue 3, p609-625 [3] John L. Utz, "Family and Medical Leave Act: The Employee Benefits Implications", Journal of Pension Planning & Compliance, Winter2007, Vol. 32 Issue 4, p15-46

[4] Katherine A. Burkhart, " Layering Administrative Law and Basic Contract
Principles: Analyzing the Waiver of FMLA Claims in Severance Agreements", Journal of Corpo-ration Law, Summer2008, Vol. 33 Issue 4, p983-1006

[5] R. Mitch Casselman,; Michael J Gundlach,; James F. Morgan; Suzanne Zivnuska. Legally Mandated Paid Sick Leave: Response Options for Businesses and Managers, SAM Advanced Management Journal (07497075), Spring 2009, Vol. 74 Issue 2, p13-22

[6] JEFFREY A. MELLO, " NAVIGATING THE LAND MINES OF THE FAMILY AND MEDICAL LEAVE ACT", Journal of Individual Employment Rights, 2005-2006, Vol. 12 Issue 2, p151-163

[7] Matthew A. Moushon, Garrett E. Asher, "Preventing wrongful discharge: Know your facts", Nursing Management, Jun2007, Vol. 38 Issue 6, p18-62

[8] Stephanie V. Rosseau, Zara Santos, and Neil M. Grossman, "Proposed FMLA Rules Require Employer Action", Benefits Law Journal, Autumn 2008, Vol. 21 Issue 3, p97-110

[9] BERNADETTE MARCZELY, "THE CONTRACTUAL DIMINISHING OF FMLA EM-PLOYEE RIGHTS", Journal of Collective Negotiations, 2008, Vol. 32 Issue 4, p279-286

[10] CHARLES L BAUM II, "THE EFFECTS OF GOVERNMENT-MANDATED FAMILY LEAVE ON EMPLOYER FAMILY LEAVE POLICIES", Contemporary Economic Policy, Jul2006, Vol. 24 Issue 3, p432-445

[11] Nancy M. Barnes, Jonathan A. Good, "The Three-Headed Monster— ADA, FMLA, and Workers’ Compensation: How Employers Can Ensure Compliance", Employee Relations Law Journal, Winter2005, Vol. 31 Issue 3, p48-55

[12] Bridget A. Neuson, "What you don’t know about the FMLA can hurt you", Nursing Man-agement, May2006, Vol. 37 Issue 5, p14-17

[13] Richard Gisonny, Stephen Douglas, "FMLA Expanded for Leaves Related to Family Mem-bers Serving in the Military", Benefits Quarterly, 2008 Third Quarter, Vol. 24 Issue 3, p10-12

[14] Dana S. Connell, Michael G. Congiu, "Designing a Bonus Plan That Rewards Attendance and Productivity Without Violating the FMLA", Employee Relations Law Journal, Spring2007, Vol. 32 Issue 4, p76-86

[20] Linda B. Dwoskin, Melissa Bergman Squire, "FMLA BOOT CAMP:REGULATORY AND CASE LAW DEVELOPMENTS UNDER THE FAMILY AND MEDICAL LEAVE ACT", Labor Law Journal, Spring2010, Vol. 61 Issue 1, p37-51

Solis, H.A. (2011, April 24). Leave benefits: fmla leave. Retrieved from http://www.dol.gov/dol/topic/benefits-leave/fmla.htm

Smith, A. (2010, August). Fmla to cover same-sex parents. HRMagazine, 55(8), 13.
Geisel, J. (2010, June 28). Dol guidance eases eligibility for fmla. Business Insurance, 44(26), 4.
Thelen, J.B. (2008, May). An rx for fmla headaches. HRMagazine, 53(5), 93-102.
Rosseau, S.V., Santos, Z., & Grossman, N.M. (2008). Proposed fmla rules require employer ac-tion. Benefits Law Journal, 21(3), 97-110.
Zachary, M-K. (2010, June). Proving incapacitation in fmla cases. Supervi-sion, 71(6), 21-24.

Greenwald, J. (2006, December 11). Department of labor not expected to make fmla alterations. Business Insurance, 40(50), 6.

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...LEG-500 1/30/11 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 any thing to do with the child growing up or not, that person is still the parent. “The Family and Medical Leave Act (FMLA) were signed into law in 1993 as a means of addressing the changing needs of workers' family responsibilities. Under the law, anyone who works in a company that employs 50 or more people can take up to 12 weeks of medical leave per year without threat of losing his or her job. FMLA covers both pregnancy and ADOPTION, as well as caring for a seriously ill relative. It also covers the individual employee's own serious illnesses.” (enotes, 2011). “Simply stated, FMLA guarantees employees that they can take up to 12 weeks of either family leave (to handle adoption proceedings, for example) or medical leave (to take care of a recuperating parent) per year. Anyone who has worked for an employer for at least 1,250 hours and 12 months is entitled to leave under FMLA. Employees can take both family and medical leave during the year, but the total amount of time cannot exceed 12 weeks. If an employee requesting leave under FMLA has accrued sick time and vacation time, the employer can require that this time be included in the 12–week leave. In other words, if an employee has two weeks of paid vacation time...

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...Family And Medical Leave Act The Family and Medical Leave Act were signed by the President on February 5, 1993. "The Family and Medical Leave Act (FMLA) provide employees job protection in case of family or medical emergency. FMLA permits eligible employees to take up to 12 workweeks of unpaid leave during any 12-month period." (Martocchio, 2003) When an employee must face to some certain special situations that need stop working temporarily due to the employee’s illness, employee’s family illness, the employer should give the right to the employees to look after their family member or themselves. To help employees balance work and family life, the government enacted the Family and Medical Leave Act. And this labor law must be applied in a variety of work places by affecting the employee’s benefits and employer’s policy. As a result, FMLA which have influenced the employees and employers a lot is essential for all the workers. Family And Medical Leave Act Prior to the FMLA, many employees can not handle the problems that need them to have a medical and family reason leave. When employees make a request for leave, the employer can deny them for any reason, and employees also could be fired for having family and medical leave. Or sometimes workers changed their work, even within the same firm, the workers may not be treated the same about the leave."Some employers had formal leave policies that were applied uniformly to their workforces while others had informal policies...

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...your paper. Substandard draft papers submitted without a completed research worksheet cannot earn a grade. Enjoy researching, paraphrasing, and citing other authors using this research worksheet! Worksheet Components: • Problem Statement and Key Words FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. Family medical leave Paid time off Employee benefits Library Research, Source #1 Capella library Internet Research, Source #1 www.google.com References and Finalizing Unit 3 main post. • www.dol.gov/dol/topic/benefits-leave/​fmla.htm • Library Research, Sources #2 and #3 • http://site.ebrary.com.library.capella.edu/lib/capella/docDetail.action?docID=10103868&p00=employee+benefits • The employer's legal handbook (0-87337-499-1, 978-0-87337-499-6), 3rd National ed. / Steingold, Fred. • Nolo Press, 1999 • Internet Research, Sources #2 and #3 • www.fmla101.com/fmla-basics/fmla-​eligibility.html • www.faegrebd.com/9420...

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...Act (FMLA) Traci Johnson ENG.215: Research and Writing Prof. D. Meadows What is FMLA? How does it work? These questions are very common when it comes to FMLA. Many people do not understand the fundamentals of this act, nor the effects that it can have on the employer as well as the employee, and fellow employees. Throughout this paper, you will learn what FMLA is, how it works, the issues, pros, and cons of this act, as well as solutions that could better this act, and help it to be more easily understood and beneficial to all parties involved. What is FMLA? FMLA is the abbreviation for the Family and Medical Leave Act; which is a bill that was passed in 1993. This bill states that federal law required companies and employers, who employ more than 50 employees, must provide their employees with 12 work weeks of job-protected and unpaid leave for qualified medical and family reasons. However, not all employees will qualify to receive leave under the Family and Medical Leave Act. There are several qualifying factors that determine whether or not the employee is eligible for leave under this act, and whether or not a company is even required to honor leave under this act. It is required by law that all public, state, local, federal, and educational agencies, and all private sector employers who employ 50 or more people for at least 20 workweeks in a 12 months year, this includes joint employers and successors of covered employers to provide leave under FMLA to its...

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...The Family and Medical Leave Act (FMLA) were enacted to help employees maintain work and family life. “The act provides eligible employees with two types of job-protected leave: regular leave and military family leave. Military family leave consists of qualifying exigency leave and military caregiver leave. FMLA leave is job-protected leave. After returning from FMLA leave, an employee generally has the right to return to the same, or an equivalent job with the same pay, benefits, and working conditions” (www.fmlaonline.com). In addition, FMLA is generally unpaid leave. However, the employee may substitute accrued paid leave (vacation or personal leave) for FMLA leave (Halbert and Ingulli 2010). Also, an employer may require an employee to substitute accrued paid leave for unpaid leave. “An employee’s ability to substitute paid leave is determined by the terms and conditions of the employer’s normal leave policies. While an employee is on FMLA leave, an employer must maintain the employee’s group health insurance coverage. Both the employer and employee continue to pay their regular shares of an employee’s health insurance premiums” (www.fmlaonline.com). Covered Employees According to the US Department of Labor “In order for an employee to qualify for FMLA leave, he/she must satisfy the following requirements: (1) the employee must work for the employer for at least 12 months, although the 12 months need not be consecutive; (2) a minimum of 1,250 hours in the 12...

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Fmla

...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. If a parent did not have anything to do with their biological child it should not stop the child from being able to file for FMLA to care for the parent. Family and Medical Leave Act are there to help children, spouses, and or parents take care of their immediate family members. It should be up to the child to determine if they want to use FMLA to care for a parent or anyone else that can be claimed under the FMLA act even though they might not have a great relationship. As Tony stated in the video, “He is still my father”, which still gives him the right to do the right thing or he may feel obligated to still take care of his father even though his father did not help with raising him when he was younger. The decision to take care of a parent who may not have been there to help support the child should not be influence by the employer but the decision should solely be determined by the child. The decision for some may be well thought out and they may feel it is the best thing in their interest to take care of the family or may choose not to do anything. Some children may feel since their parent was not there for them then they will not help their parent out no matter what the situation is. The children may still have a grudge against their parent and feel strongly about how they...

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