Family Related Issues

By
Jerry Sutherland

Instructor
JAMIE DAVIS SMITH

LEG-500

1/30/11

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 the parent had any thing to do with the child growing up or not, that person is still the parent. “The Family and Medical Leave Act (FMLA) were signed into law in 1993 as a means of addressing the changing needs of workers' family responsibilities. Under the law, anyone who works in a company that employs 50 or more people can take up to 12 weeks of medical leave per year without threat of losing his or her job. FMLA covers both pregnancy and ADOPTION, as well as caring for a seriously ill relative. It also covers the individual employee's own serious illnesses.” (enotes, 2011). “Simply stated, FMLA guarantees employees that they can take up to 12 weeks of either family leave (to handle adoption proceedings, for example) or medical leave (to take care of a recuperating parent) per year. Anyone who has worked for an employer for at least 1,250 hours and 12 months is entitled to leave under FMLA. Employees can take both family and medical leave during the year, but the total amount of time cannot exceed 12 weeks. If an employee requesting leave under FMLA has accrued sick time and vacation time, the employer can require that this time be included in the 12–week leave. In other words, if an employee has two weeks of paid vacation time accrued, he or she cannot automatically take those two weeks and an additional 12 weeks; the employer can be generous and allow that but is not obligated to do so.” (enotes, 2011).

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 mean every thing, “Under the law, anyone who works in a company that employs 50 or more people can take up to 12 weeks of medical leave per year without threat of losing his or her job. FMLA covers both pregnancy and ADOPTION, as well as caring for a seriously ill relative. It also covers the individual employee's own serious illnesses.” (enotes, 2011).
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 is not allowed to imply that is Tony takes his leave that he may or may not have a job under the FMLA and here is why, “Under FMLA, the employee taking leave is entitled to reinstatement upon returning to work. If the employee's old job is not available, he or she is entitled to another job at a similar level of responsibility. A company cannot punish an employee who takes FMLA leave by firing or demoting that person simply for taking the time off.” (enotes, 2011).
Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993? The FMLA generally covers employers with 50 or more employees in 20 or more workweeks per year in the current or preceding calendar year. For example, an employer who was covered in year “A” continues to be covered during year “B” (the following calendar year) even if it fell below, and remained below, the 50 employees/20 workweeks threshold during the later part of year “A” and all of year “B.” Any employee whose name appears on the employer’s payroll, including part-time employees, is considered employed each working day of the calendar week and is counted even if he does not receive compensation for that week. Note, in addition all “public agencies” and public and private elementary and secondary schools are covered, without regard to the number of employees. A “public agency” is the U.S. government and its agencies; a state government (including the District of Columbia and U.S. territories and possessions), its political subdivisions, and its agencies; and any interstate governmental agency. A corporation, rather than its separate divisions or locations, normally is considered a single employer under the FMLA. When one corporation has an ownership interest in another, they will be considered separate employers for FMLA purposes unless they meet either the “integrated employer” test or the “joint employer” test. In addition, some separate corporations with no common ownership will be considered “joint employers” of the same employee because they both exercise some control over the work and working conditions of the employee, as is common when workers are supplied by a staffing services firm. (ppspublishers, 2011). The FMLA defines an eligible employee as one who meets all three of the following criteria: (1) the employee has worked for the employer for at least 12 months (not necessarily consecutively); (2) the employee has worked for the employer for at least 1,250 hours in the previous consecutive 12-month period; and (3) the employee works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of worksites that taken together have a total of 50 or more employees. Whether an employee has worked the minimum 1,250 hours is determined by counting the actual number of hours the employee has worked in the previous 12-month period. Therefore, paid vacations, holidays, and sick leave are not counted. In addition, eligibility is determined as of the date the leave will actually begin, not when the employee requests the leave. For an employee who does not have a fixed worksite, such as a truck driver, construction worker, or sales representative, the location used to determine eligibility is the one which is considered the employee’s “home base,” i.e., the employer office or facility from which the employee’s work is assigned, or the location to which the employee reports. As a general rule, you should analyze coverage for employers and employees separately to determine whether the FMLA applies to a particular situation. For example, even though your organization may be covered because it has over 50 employees (even if it has only one employee in each state), a particular employee may not qualify for coverage if he does not work at a worksite within 75 miles of 50 employees or has not worked enough hours for that employer to be eligible. In addition, you should check state leave laws since these may apply to employers that the FMLA does not cover and may provide leave rights to new or part-time employees who are not eligible for FMLA leave. . (ppspublishers, 2011).

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? An employer may require that an employee's request for leave to care for the employee's seriously-ill spouse, son, daughter, or parent, or due to the employee's own serious health condition that makes the employee unable to perform the functions of the employee's position, be supported by a certification issued by the health care provider of the employee or the employee's ill family member. An employer must give written notice of a requirement for medical certification (see 825.301) in a particular case, but an employer's verbal request to an employee to furnish any subsequent medical certification is sufficient. The employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.
(b) In most cases, the employer should request that an employee furnish certification from a health care provider at the time the employee requests leave or soon after the leave is requested, or, in the case of unforeseen leave, soon after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.
(c) At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification. The employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency.
825.306 - How much information may be required in medical certifications of a serious health condition? (a) DOL has developed an optional form for employees' use in obtaining medical certification from health care providers that meets FMLA's certification requirements. (See Appendix B to these regulations.) This optional form reflects certification requirements so as to permit the health care provider to furnish appropriate medical information within his or her knowledge. This form, or another form containing the same basic information, may be used by the employer; however, no additional information may be required. The form identifies the practitioner and type of medical practice (including pertinent specialization, if any), makes maximum use of checklist entries for ease in completing the form, and contains required entries for:
(1) The date the serious health condition commenced and the health care provider's best medical judgment concerning the probable duration of the condition;
(2) Diagnosis of the serious health condition;
(3) A brief statement of the regimen of treatment prescribed for the condition by the health care provider (including estimated number of visits, nature, frequency and duration of treatment, including treatment by another provider of health services on referral by or order of the health care provider); and
(4) Indication of whether inpatient hospitalization is required.
(b) For medical leave because of the employee's own serious health condition, the health care provider's certification must also include either a statement that the employee is unable to perform work of any kind, or a statement that the employee is unable to perform the essential functions of the employee's position, based on either information provided via a statement from the employer of the essential functions of the employee's position, or, if not provided, discussion with the employee about the employee's job functions. (See 825.115.)
(c) For family leave to care for a seriously-ill family member, the health care provider's certification must also include a statement that the patient requires assistance for basic medical, hygiene, nutritional needs, safety or transportation, or that the employee's presence would be beneficial or desirable for the care of the family member, which may include psychological comfort. The employee is required to indicate on the form the care he/she will provide and an estimate of the time period. (See 825.116.)
(d) The treatment regimen and other information in the certification should satisfy the requirement that if leave must be taken intermittently or on a reduced leave schedule because of the employee's own serious health condition or a seriously-ill family member the certification include:
(1) A statement of the medical necessity for such leave (see 825.117); or,
(2) That the leave is necessary to care for the child, parent, or spouse who has a serious health condition, or will assist in the family member's recovery, and (3) The expected duration and schedule of the intermittent or reduced leave schedule. (See 825.116.)
825.307 - What can an employer do if it questions the adequacy of a medical certification?
(a) If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee's health care provider. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification.
(1) If an employee is on FMLA leave running concurrently with a workers' compensation absence, and the provisions of the workers' compensation statute permit the employer or the employer's representative to have direct contact with the employee's workers' compensation health care provider, the employer may follow the workers' compensation provisions.
(2) An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits. If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies. The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer.
(b) The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (e.g., a rural area where no more than one or two doctors practice in the relevant specialty in the vicinity).
(c) If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be designated or approved jointly by the employer and the employee. The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider. If the employer does not attempt in good faith to reach agreement, the employer will be bound by the first certification. If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification. For example, an employee who refuses to agree to see a doctor in the specialty in question may be failing to act in good faith. On the other hand, an employer that refuses to agree to any doctor on a list of specialists in the appropriate field provided by the employee and whom the employee has not previously consulted may be failing to act in good faith.
(d) The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, upon request by the employee. Requested copies are to be provided within two business days unless extenuating circumstances prevent such action.
(e) If the employer requires the employee to obtain either a second or third opinion the employer must reimburse an employee or family member for any reasonable "out of pocket" travel expenses incurred to obtain the second and third medical opinions. The employer may not require the employee or family member to travel outside normal commuting distance for purposes of obtaining the second or third medical opinions except in very unusual circumstances.
(f) In circumstances when the employee or a family member is visiting in another country, or a family member resides in a another country, and a serious health condition develops, the employer shall accept a medical certification as well as second and third opinions from a health care provider who practices in that country.
825.308 - Under what circumstances can an employer request subsequent recertification of medical conditions to support leave requests?
(a) For pregnancy, chronic, or permanent/long-term conditions under continuing supervision of a health care provider (as defined in 825.114(a) (2)(ii), (iii) or (iv)), an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee, unless:
(1) Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of absences, the severity of the condition, complications); or
(2) The employer receives information that casts doubt upon the employee's stated reason for the absence.
(b)(1) If the minimum duration of the period of incapacity specified on a certification furnished by the health care provider is more than 30 days, the employer may not request recertification until that minimum duration has passed unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section is met.
(2) For FMLA leave taken intermittently or on a reduced leave schedule basis, the employer may not request recertification in less than the minimum period specified on the certification as necessary for such leave (including treatment) unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section is met.
(c) For circumstances not covered by paragraphs (a) or (b) of this section, an employer may request recertification at any reasonable interval, but not more often than every 30 days, unless:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications); or
(3) The employer receives information that casts doubt upon the continuing validity of the certification.
(d) The employee must provide the requested recertification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.
(e) Any recertification requested by the employer shall be at the employee's expense unless the employer provides otherwise. No second or third opinion on recertification may be required. (Audubon, 1995).

References http://www.enotes.com/everyday-law-encyclopedia/family-and-medical-leave-act-fmla http://www.enotes.com/everyday-law-encyclopedia/family-and-medical-leave-act-fmla http://www.enotes.com/everyday-law-encyclopedia/family-and-medical-leave-act-fmla http://www.ppspublishers.com/articles/FMLAeligibility.htm http://www.ppspublishers.com/articles/FMLAeligibility.htm http://www.audubon-area.org/Personnel/Fmla-reg.htm#300