ASSIGNMENT #2 – FAMILY RELATED ISSUES
LEGAL 500

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.
The Family and Medical Leave Act (FMLA) provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period to eligible, covered employees for the following reasons: 1) birth and care of the eligible employee's child, or placement for adoption or foster care of a child with the employee; 2) care of an immediate family member (spouse, child, parent) who has a serious health condition; or 3) care of the employee's own serious health condition. It also requires that employee's group health benefits be maintained during the leave. The FMLA is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor. Application of the FMLA can also be impacted by the Uniformed Services Employment and Reemployment Rights Act (USERRA), Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA), the Americans with Disabilities Act of 1990 (ADA), or the Health Insurance Portability and Accountability Act (HIPAA). Parents not literally caring for the biological child has no resolve as to whether the child should be granted leave to care for the biological parent. Family and Medical Leave Act (FMLA) do not place stipulations on granting leave for a parent based upon financial or physical responsibilities. As stated by Halbert & Ingulli, the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting. Most of the people I know would choose the family over their position. I only know a hand full of people considering the rest of the world. I would start making provisions and arrangements for the care of my family. My employment is something I may enjoy and I may possibly have found great friends but they are not my family. Family is first in my life.
Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
There are always exceptions to rules. The FMLA does not, however, apply to everyone. The Act does not apply to small employers, or to employees who have been hired recently. Although the exceptions to coverage are few, they are worth exploring every time an employee requests leave. In each case, there are two coverage questions. First, is the employer covered by the FMLA? Second, even if the employer generally is covered, is the specific employee who is requesting leave eligible for FMLA benefits? The questions must be considered separately, in that order. Employer Coverage of The FMLA applies only to employers who have had 50 or more full, part-time, or temporary employees on their books for 20 or more weeks during this calendar year or during the last calendar year. Once an employer has had 50 employees on its books for 20 weeks, the employer is covered by the Act -- both for this year, and for the next calendar year. This is true even if the payroll drops below the 50 employee mark during those two calendar years -- the employer is still covered until the two years expire. Employers not covered by the FMLA may establish their own policies about the length of leave available to employees, may determine the notice requirements that employees must follow to request leave, and may retain the discretion to grant or deny leave requests, subject only to limitations created by other laws, such as the Civil Rights Act of 1964 and the Americans With Disabilities Act. For example, exempt employers must provide leave for pregnancy to the same extent it provides leave for other temporary disabilities. The size of the business has no cause for family leave eligibility. However, the percentage of salaried employees does take a major role in FMLA approval or denial of leave. According to exceptions and special rules under FMLA, employees within a firm’s top 10 percent of salaried employees within a 75-mile radius, for example can be denied restoration to the job in conclusion of a leave (Halbert & Ingulli, 2010). According to Herman, Tony was a great salesman and would be needed for the new car model that would be sold at Rally Motors. Herman has no real reason for denying Tony family leave, besides his need for Tony to keep the up business quotas. Tony gave a great example of how many employees were there and this means he could take family leave. How ethical is it to imply that the car dealership was his family which is more important than his biological parent. Herman is trying to use business necessity as a reason to keep Tony from taking a family leave to help his ill father.
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.
Imply means to suggest or hint without actually making a statement. Herman can imply that if Tony takes a leave that he will be unemployed when he returns. According to Halbert and Ingulli, exceptions and special rules Herman has the right to deny restoration to the job after leave with certain exceptions:
1) if Herman can see that the business will not prosper based upon Tony’s absence
2) if Herman determined that such injury to Tony would occur; personal injury to the employee. 3) if Tony denied his return as an employee to Rally Motors due to the denial of leave.
Employees have rights under the FMLA. The FMLA provides that eligible employees of covered employers have a right to take up to 12 weeks of job-protected leave in any 12-month period for qualifying events without interference or restraint from their employers. The FMLA also gives employees the right to file a complaint with the Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), and testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner.
Herman would like to deny Tony’s request to spend what could be the last time of his life with his ill father. Herman is only thinking of Rally Motors being prosperous and the materialistic things he has gained from his father. Tony is trying to rely on making things better with his father before death, rather than thrive on what he has not done or given to him in life. As an employer, Herman is not being compassionate or concerned with anything except his business. However, Tony is covered under the FMLA of 1993, because he will be caring for a parent with health issues. Herman must guarantee him equivalent benefits, pay and employment conditions such as those prior to his leave. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993. | |

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 (1) be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people; (2) have worked at least 12 months (which do not have to be consecutive) for the employer; and (3) have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.
Basic Provisions/Requirements
The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons: 1. Birth and care of the employee's child, or placement for adoption or foster care of a child with the employee; 2. Care of an immediate family member (spouse, child, parent) who has a serious health condition; or 3. Care of the employee's own serious health condition. If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. Usually, an employee may elect (or the employer may require) the use of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave. Employees may take FMLA leave in blocks of time less than the full 12 weeks on an intermittent or reduced leave basis when medically necessary. Taking intermittent leave for the placement, adoption, or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth and care of a child is also subject to the employer's approval except for pregnancy-related leave that would be leave for a serious health condition.
When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable. When the leave is not foreseeable, the employee must provide such notice as soon as possible. An employer may require medical certification of a serious health condition from the employee's health care provider. An employer may also require periodic reports during the period of leave of the employee's status and intent to return to work, as well as "fitness for duty" certification upon return to work in appropriate situations.
An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.) The employee is not entitled to accrue benefits during periods of unpaid FMLA leave, but the employer must return him or her to employment with the same benefits at the same levels as existed when leave began. Employers are required to post a notice for employees outlining the basic provisions of FMLA and are subject to a $100 civil money penalty per offense for willfully failing to post such notice. Employers are prohibited from discriminating against or interfering with employees who take FMLA leave. |
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 employer is able to make his or her own determination on FMLA eligibility when it affects the business performance. The employer can make provisional moves to accommodate the absence of the employee for the 12 workweek period. However, under FMLA, employees may take the time sparingly which may never affect his or her performance. As a result, the employer must take FMLA policies and procedures and apply them as need to the situation. However, before the employer makes certain determinations, the employee must notify the employee of certain decisions. According to Drama of Law 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.
Conclusion
Law and ethics in the work place is very evident in this situation. Here is an example of disclosing personal information to your employer but also someone you thought would give you good advice and would be considered family and friend. Herman appeared to be concerned about Tony and his father until he wanted to take family leave. As an employer, implying that if Tony took family leave he would lose business and he could possibly not have a position when he returned. Fortunately for Tony the law is on his side, regardless of the unethical practices and innuendo that Herman makes. So much for family values.

Reference
Drama of the Law: Family Related Issues: Family and Medical Leave Act. (n.d.). www.swlearning.com/blaw/wdvl/wdvl/instructor/dr_18_sol.html. Retrieved October 29, 2011, from http://www.swlearning.com/blaw/wdvl/wdvl/instructor/dr_18_sol.html
Halbert, T., & Ingulli, E. (2009). Law & ethics in the business environment: 2010 custom edition (6th ed.). Mason, OH: South-Western Cengage Learning, 137.
Luchansky, B. M. (n.d.). DOES THE FAMILY AND MEDICAL LEAVE ACT APPLY?. Information for Professional Human Resource Managers. Retrieved October 29, 2011, from http://www.kollmanlaw.com/articles/article19.html
OSHA Safety Regulations & Labor Law Guide. (n.d.). Family & Medical Leave Act of 1993- FMLA. Retrieved October 29, 2011, from /www.osrllg.com/additional_fmla.php
“Compliance Assistance By Law - The Family and Medical Leave Act (FMLA)." The U.S. Department of Labor Home Page. N.p., n.d. Web. 1 Nov. 2011. <http://www.dol.gov/compliance/laws/comp-fmla.htm>. -------------------------------------------------
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