Family Related Issues

by

Darryl Mitchell

Professor Kenneth Pino

Law, Ethics, and Corporate Governance – LEG 500

July 23, 2011

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.

Whether a parent had nothing to do with a biological child have nothing to do with the child being eligible for FMLA to care for that parent and it shouldn’t matter. Regardless of the relationship between a parent and child, the child would fall under the FMLA and would be able to care for the parent. Under FMLA, an employee can care for a parent if they have a serious health issue. Even though the video never stated what the issue is, since the father will be having surgery that would fall under a reasonable explanation for the employee to take the leave. A parent can be either a biological parent or someone who stood in place of a parent in raising a child. It never states anything about the type of relationship a parent needs to have with the child. Since he is actually the biological child he would fall under the FMLA and would be able to care for the parent.

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 the business can have an effect on whether Tony is eligible for family leave under the FMLA but not in the way Herman describes. In the video Tony said the used car lot had around 50 employees. If an employer employs fewer than 50 employees within a 75 mile radius from the workplace, the employee does not qualify for FMLA. Being that the company is small; having employees away for a 3 month period can be extremely detrimental to a small company. Being that Tony is by far the top salesman in the company, him leaving to go on FMLA can be considered grievous economic injury to the operations of the employer. Herman is trying to use business necessity as a reason to keep Tony from taking a family leave to help his ill father
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 will not have a job if the goes on FMLA and then returns. It is unlawful for any employer to deny or restrain any right that is under law and FMLA is a written law. Herman cannot use FMLA as a negative factor in employment actions. Under FMLA it is required for companies to return the employee to the former position, assuming that they are able to perform the essential job functions that are required for the position. If the position is not available at that time, then the company must put Tony in an equivalent position that has the same pay, benefits, and all the other terms of employment. However, 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. A key employee is 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.

4. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993. Under the FMLA act, an employee spouse, children, and parents are covered under the Family Medical Leave Act. The term parent does not include in-law, but in certain states such as New Jersey in-laws are for immediate family members. The terms son and daughter are not for people age 18 or older unless they are considered “incapable of self care” because of mental or physical capabilities that limit them to life activities. These terms and definitions can be found by the Equal Employment Opportunity Commission (EEOC) and the Americans with Disabilities Act (ADA). If the employee is choosing to adopt or to take over a child in foster care, then this situation is also covered under FMLA. The employee is covered by FMLA for serious conditions that prevents the employee from performing the essential functions of his or her position. These conditions can include being pregnant, prenatal complications, chronic conditions (diabetes, epilepsy), long term conditions (cancer, Alzheimer’s disease), hospitalization, and conditions that require ongoing treatment such as chemotherapy, and dialysis (Halbert, T. and Ingulli, E, 2009).
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.

The extent to which an employer can make his or her own determination as to the eligibility of an employee under FMLA has to do with whether the employee has met all conditions under the act. Basically, 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. Some guidelines are that the employer can deem the employee ineligible if they have not worked for the company for at least 12 months. Nevertheless, the 12 months need not be consecutive. A break in employment for no more than seven years still qualifies the employee for benefits. As mentioned previously, the 12 months do not have to be consecutive. Therefore, the time before the break would also count toward their 12 months of employment. Another determination for an employer is the number of hours worked for the company. For an employee to be considered eligible for FMLA, the employee would have to have worked for at least 1250 hours over the previous 12 months. The 1250 hours does not include any time that the employee was paid but did not provide service such as holiday pay and vacation pay. Finally, the employer has to employ at least 50 employees in a 75 mile radius.

References
Halbert, T., & Ingulli, E. (2009). Law & Ethics in the Business Environment: 2010 Custom edition (6th ed.). Mason, OH: South-Western Cengage Learning.