Running Header: Video Assignment

Family Related Issues
Strayer University
Professor Whitney Davis, Esq.
LEG 500
29 January 2012

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. No, it does not matter if the parent was in the employee's life as long as it is the employee's parent then they are able to use FMLA. The type of relationship or lack thereof between a child and their biological parent has no bearing on whether an employee is eligible for FMLA. An employee can ask to use FMLA to care for a family member (whether they had nothing to do with them), for their own physical or mental health care and after the birth or adoption of a child. The Family and Medical Leave Act (FMLA) provides an entitlement of up to 12 weeks of job protected and unpaid leave during any 12 month period to eligible covered employees and employers must grant eligible employees this right.
Explain whether the size of the business can have any effect on whether Tony is eligible for Family Leave under the FMLA. Yes, but not in the way Herman describes. Herman is trying to use business necessity as a reason to keep Tony from taking a family leave to help his ill father. The Family and Medical Leave Act (FMLA) applies to a company if there are over 50 employees within 75 miles of the worksite, and at least 50 of the employees’ work 20 or more work a week in a current or preceding calendar year. If a company is a public agency, the employers are subject to provide FMLA regardless of the number of employees employed. All schools, private or public, are considered public agencies. Therefore, due to these facts, Tony is eligible for The Family and Medical Leave Act (FMLA) because in the video, it mentioned that the small company he worked for had approximately 50 employees.
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. The answer is no for most employees. This is exactly the type of behavior that the act is designed to prevent. An important exception to the FMLA, however, allows the employer to avoid reinstatement of a key employee; defined as an employee whose pay falls within the top 10 percent of the firm's work force. If Tony qualifies as a key employee, then Herman may be within his legal rights by denying reinstatement to Tony when he returns.
Describe who is covered by the Family Leave and Medical Act (FMLA) of 1993. 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. The employer cannot, however, resort to coercive tactics, such as threats about the employee losing his or her job, to prevent the employee from taking the leave. The Family and Medical Leave Act (FMLA) provide a means for employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. 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 year. The law covers all public agencies (state 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; first, be employed by a covered employer and work at a company within 75 miles of which that employer employs at least 50 people; secondly, have worked at least 12 months (which do not have to be consecutive) for the employer; and lastly, have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.
Explain the extent to which an employer can make his or her own determination as to the eligibility of an employee under the Family Leave Act. Who is responsible for designating leave as leave eligible for the protection provided under the Family and Medical Leave Act? Simply stated, the employer has full responsibility for designating leave, whether it’s paid or unpaid; as FMLA qualifying leave, and for telling the employee. That doesn't mean, however, that the employer has the right to indiscriminately designate just any leave as FMLA leave. The reason for the time away must meet the requirements for eligibility under the Family and Medical Leave Act. The decision to designate leave as FMLA leave must be based entirely on information provided by the employee or the employee's spokesperson. In situations where the employee is incapacitated, the employee's spouse, adult child, parent, physician, or other person with authority to speak for the employee may provide information. Once an employer has sufficient information requesting paid leave for FMLA purposes, the employer must notify the employee that the leave will be counted as FMLA at the time the information is received or prior to the start of the leave. But, if the employer fails to provide such notice, the employer cannot retroactively designate any of the leave as FMLA. The employer may only designate any qualifying leave as FMLA after the employee is notified. However, the employee has full protection under the FMLA for any qualifying leave taken prior to being notified by the employer that it will be counted as FMLA leave. It is important to remember that the responsibility of designating qualifying leave as FMLA is totally the responsibility of the employer. If the employer knows that an employee is absent for an FMLA qualifying reason, the employer cannot deny the leave, nor fail to provide the protections under the FMLA guidelines to the employee, even though the employee has never asked for or asserted his or her rights. Even though an employer does not designate qualifying FMLA leave as such, an employee's rights under the FMLA are still protected.

REFERENCES
1. Halbert, Terry, & Ingulli, Elaine, Law and Ethics in the Business Environment, Cengage Learning, 2008.
2. Video: “Family Related Issues: Family and Medical Leave Act”
3. http://www.dol.gov/compliance/guide/fmla.htm.