Assignment #2 – Family Related Issues
Kenya Williams

Dr. Mark Davis

LEG 500 – Law, Ethics, and Corporate Governance

July 31, 2011

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 a parent had anything to do with a biological child in order for the child to take care of his or her parent and take advantage of FMLA because, under the Family and Medical Leave Act of 1993, “parent” means a biological parent adoptive, step or foster father or mother, or an individual who stands or stood “in loco parentis,” meaning in place of parent, “to the employee when the employee was a child (U.S. Department of Labor, 2010). However, this does not extend to a parent in-law (U.S. Department of Labor, 2010). Also, under the law, each employee has a set amount of vacation and sick time allocated, in which they can by law take if there is enough to cover what they are asking to take (U.S. Department of Labor, 2010). Therefore, Tony is eligible in this category to take FMLA, providing that he has fulfilled all other qualifications.

Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA. FMLA does not apply to everyone. There are exceptions. 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 (U.S. Department of Labor, 2010)? Second, even if the employer generally is covered, is the specific employee who is requesting leave eligible for FMLA benefits (U.S. Department of Labor, 2010)? These questions must be considered separately, in that order. Even if the company has more than 50 employees, however, there are times when the particular employee requesting the FMLA leave is not “eligible” for it. If the employee is not eligible under the FMLA, even though the employer generally is covered because it has more than 50 employees, the company does not have to comply with the FMLA with respect to that employee (Mallor, Barnes, Bowers, Langvardt, p. 1253). Another exception exists for employers with scattered work sites, such as construction companies. Even if the employer has more than 50 total employees in its home office and on crews in different regions, employees are eligible under the FMLA only if they are employed at a work site where there are 50 or more employees within a 75 mile radius (Mallor, Barnes, Bowers, Langvardt, p. 1254). If fewer than 50 employees are hired for job sites that are within a 75-mile radius of each other, those crews are not covered by the FMLA (Mallor, Barnes, Bowers, Langvardt, p. 1254). Because of the FMLA law stated, I would say yes the size of a company does matter, but not in the way Herman describes. Herman is trying to use business necessity as a reason to keep Tony from taking advantage of FMLA to take care of his ill father. However, this company has employees more than 50 but not all workers are full-time employees, therefore, this mean that Tony cannot take advantage of FMLA law in this case.

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 can make any statement he wants, but he has to abide by the FMLA. This is the type of behavior that the act is designed to prevent. Many employers mistakenly think that you can deny FMLA to upper level, highly compensated employees. While it is true the FMLA puts some limits on the rights of these key employees, the law only affects their reinstatement, not their right to take leave. In addition, the FMLA places heavy burden for employers to notify key employees of their status before denying reinstatement. The FMLA states that you may deny reinstatement at the end of an FMLA leave to a highly compensated “key” employee if reinstatement would cause “substantial and grievous economic injury” to your operations (Brown & Sukys, 736). It is the reinstatement of the key employee, not the employee’s absence, which must cause substantial and grievous economic injury to you in order to deny reinstatement (Brown & Sukys, 736). To determine whether the reinstatement will cause substantial and grievous economic injury, the regulations suggest that an employer may consider whether reinstatement immediately threatens the economic viability of the company or whether it will cans long-term economic injury (Brown & Sukys, 736). The employer should take into account their ability to replace the employee on a temporary basis or do without the employee for the leave period. Minor inconveniences and costs that an employer would experience in the normal course of business are not sufficient reasons to deny reinstatement (U.S. Department of Labor, 2010). The important point is that although a key employee may not qualify reinstatement, the employee is still entitled to take an FMLA leave and to receive all benefits of the leave (U.S. Department of Labor, 2010). In addition, to invoke the exception, the statute imposes two more requirements. First, you must notify the employee of the organization’s intent to deny reinstatement once you determine it would cause a qualifying injury. Second, if the leave has already begun, you must give the employee the opportunity to return to work within a reasonable period of time once the notice is given (U.S. Department of Labor, 2010). Depending on whether or not if Tony qualifies as a key employee, then Herman may be within his legal rights by denying reinstatement to Tony when he return to work.
Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993. FMLA laws are federal laws which give certain employees the right to an unpaid leave of absence from work for pregnancy or to care for an infant or other family member (Miller & Hollowell, p. 351). Although this is a federal law, not every employee is covered under the law nor is every employer. FMLA allows up to 12 weeks of unpaid leave: to care for a newborn or a newly adopted or fostered child, to care for the medical needs of another family member, to recover from a pregnancy (concurrent with caring for the newborn), and to recover from your own serious health condition. An employee may use any paid vacation or sick time during these 12 weeks but it is not mandatory (Miller & Hollowell, p. 351).
Covered Employers All public agencies, regardless of their size must comply with FMLA. Elementary and secondary schools are considered public agencies, even if the school is private (Hospice, 2010). Private companies are covered under FMLA if: you employ 50 or more people within 75 miles of a work site, those 50 employees were on your payroll for at least weeks in the current or preceding calendar year, if you drop below 50 employees while an employee is out on leave under FMLA, and you may not terminate their leave although once they return to work you may not have to continue offering leave under FMLA (Hospice, 2010).
Covered Employees If an employee work for an employer who has to comply with FMLA, the next thing that employee need to figure out is if he or she is eligible. An employee is covered under FMLA if: you work for a covered employer, you have worked there for 12 months prior to the leave, you have worked at least 1,250 hours during those 12 months, and you provided at least 30 days notice for a foreseeable reason to need the leave (Hospice, 2010). As stated above, the FMLA defines who is eligible under the act and under what circumstances employees may take a leave of absences for family or medical purposes.

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. 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. Under the Family and Medical Leave Act, the employer can determine if the employee is eligible to the extent that they have, (1) met the requirements of service time, in which to be eligible for FMLA leave, employees must have one year of aggregate state service and have worked at least 1,250 hours during the prior 12 months; (2) the reasons for using FMLA, which are to care for a child after birth, placement for adoption or foster care, to care for an employee’s spouse, son, daughter, or parent who has a serious health condition; (3) qualifying conditions, which are serious physical or mental conditions that involves inpatient hospital care that will cause absence from work for more than 3 consecutive calendar days and involves continuing treatment by a health care provider; and (4) notice and medical certification, which requires employees to provide advanced leave notice and certification whenever practical, ordinarily 30 days advanced notice shall be given when leave is foreseeable (U.S. Department of Labor, 2010). The employer should only abide by FMLA laws and not go by how they are feeling and resort to coercive tactics, such as threats about the employee losing his or her job, to prevent the employee from taking the leave, just as Herman did to Tony.

References:
Halbert, T., & Ingulli, E. (2009). Law & ethics in the business environment: 2010 custom edition (6th ed.), Mason, OH: South-Western Cengage Learning.

Hollowell, W. & Miller, R. (2008). Business Law- Text & Exercises: (5th ed.), Mason, OH: South-Western Cengage Learning.

Brown, G. & Sukys, P. (2009). Business Law: with UCC applications: (12th ed.), New York, NY: McGraw-Hill/Irwin.

Hospice, 2010, The Family and Medical Leave Act: Your Rights Under the Family and Medical Leave Act of 1993, (Retrieved July 25, 2011) http://www.hospicenet.org/html/medical_leave.html Michigan State University-Human Resources, FMLA Eligibility, (Retrieved July 25, 2011) http://www.hr.msu.edu/timeoffleave/supportstaff/FMLAElig.htm U.S. Department of Labor, 2010, Wage and Hour Division: Fact Sheet #28, (Retrieved July 28, 2011)
http://www.dol.gov/whd/regs/compliance/whdfs28.htm