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. Yes, it does matter if the parent had nothing to do with employee who is requesting FMLA to care for that parent. The FMLA definition of parent is defined as “a biological, adoptive, step, or foster parent, or an individual who stood in loco parentis to an employee when the employee was a child” (U.S. Department of Labor-Wage and Hour Division (whd)-Fact Sheet, 2010). Loco parentis is a term under FMLA commonly referred to the individual employee or individuals who cared for and financially supported an employee as a child (U.S. Department of Labor-Wage and Hour Division (whd)-Fact Sheet, 2010). Therefore, if a loco parentis relationship did not exist between the employee and the employee’s parent as a child, the employee is not eligible to utilize FMLA to take care of that parent.
2. Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
Yes, the size of the business can have an effect whether Tony is eligible for family leave under the FMLA. If the business has in excess of 50 employees for every working day for the period of 20 weeks or more in the present or previous year, it is covered by the FMLA (England &
Guerin, 2007). The 20 weeks don’t have to be successive and employees whose name are on the company’s payroll any time during a calendar week counts toward employment for the entire workweek (England & Guerin, 2007). The purpose for establishing the 50 employee rule is to excuse undersized companies who might not be able to afford to offer employees the leave and benefits allotted by the FMLA (England & Guerin, 2007).

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. Herman cannot imply that Tony might not have a job when he returns, but under certain conditions, a employer may refuse a employee’s return. An employer may possibly refuse an employee’s return to certain lucrative, salaried key positions if the return of the employee would result in significant financial damage to the employer (DelPo & Guerin, 2002). It is illegal for any employer to interfere with any right provided by FMLA or use taking leave as a harmful aspect in employer actions toward the employee (OSHA Safety Regulations & Law Guide, 2006). If an employee rights are violated, they have the right to make a formal complaint to the
Wage and Hour Division (DelPo & Guerin, 2002). If the employee isn’t satisfied with the results, he or she can file a lawsuit against the company or business (DelPo & Guerin, 2002).
For routine violations, the employee has a time limit of two years to file, if the violation was flagrant, the employee has three years to file a lawsuit (DelPo & Guerin, 2002). If the employee is victorious in his or her lawsuit, the employee may receive liquidated damages which may include the following: lost employee benefits, money damages, promotion, reinstatement, lost wages, attorney fees and cost (DelPo & Guerin, 2002).
4. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993? To be considered eligible, an employee must work for a company that is covered by FMLA. Also, the employee must have worked 1,250 hours within the past 12 months, and work at a site with 50 or more employees or within a 75-mile radius of where 50 or more employees are employed (DelPo & Guerin, 2002). The FMLA provides the employee up to 12 weeks of unpaid, job-secure leave during a 12 month period (OSHA Safety Regulations & Law Guide, 2006).

To be eligible, the employee or family members, must suffer from the following serious health conditions: Injury, illness, impairment, mental or physical condition that requires permanent or long-term incapacity, treatment for a chronic serious health condition, pregnancy or prenatal care, impatient care and incapacity for more than 3 calendar days with treatment by a physician (England & Guerin, 2007).
5. Explain the extent to which an employee can make his or her own determination as to the eligibility of an employee under the Family and Medical Leave Act. Typically, employees must provide employers 30 advance notice of a need to utilize FMLA
(DelPo & Guerin, 2002). When 30 day notice cannot be provided, the employee must provide notice as soon as feasibly possible (Delpo & Guerin, 2002). If the employee failed to give 30 day notice by a fault of their own, a employer has the right to delay the leave 30 days passed from the time the employer was informed (DelPo & Guerin, 2002). Employers must inform employees whether they are eligible for FMLA within 5 business days of receiving the leave request (OSHA Safety Regulations & Law Guide, 2006).
If eligible, employers must advise employees of his or her eligibility (OSHA Safety Regulations & Law Guide, 2006). If found ineligible, employers must supply the employee with a valid reason(s) for denial of FMLA (OSHA Safety Regulations & Law Guide, 2006). To aid in determining eligibility of an employee for FMLA, the employer reserves the right to request the employee provide a medical certification: “a written statement from a health care provider giving some basic information about the employee’s or family member’s condition”
(England & Guerin, 2007). The medical certification is only official if it contains the date illness/injury started, the duration it is anticipated to last, medical facts relating to the condition, and a declaration that the employee is unable to carry out work-related duties as a result of this serious medical condition (England & Guerin, 2007). After the employee receives the certification, an employer is not allowed to contact the employee’s physician, but can request a second opinion from another healthcare provider at the employee’s expense (DelPo & Guerin, 2002). If the second opinion differs from the first, the employer has the right to request a third opinion, which will be binding (DelPo & Guerin,
2002).

Works Cited

1. DelPo, A., & Guerin, L, (2002). Federal Employment Laws: A Desk Reference.
2. England, D., & Guerin, L, (2007). Essential Guide to Family and Medical Leave…
3. OSHA Safety Regulations & Labor Law Guide. (2006). Retrieved from http://www.osrllg.com/additional_fmla.php 4. U.S. Department of Labor-Wage and Hour Division (WHD) –Fact Sheet. (2010).
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