1. Does matter 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?
Yes, that can be an important thing because exist a current relationship with his father and does not eliminate him from having FMLA. “The FMLA allows an eligible employee with a total of 12 workweeks of leave during any 12 month period. In this case he wants to care for his father although he was absent for almost all Tony’s life eventhough if the employee’s parent has a serious health condition. So that he needs a leave for that. (Halbert- Ingulli, 2010, p 137).”
We can note that Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined in paragraph (c) of this section. This term does not include parents “in law.”
2. Does it matter whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA?
Yes, that matter because the fact is that this company has more than 50 employees that has effect in Tony’s eligibility. The FMLA applies to all employers with 50 or more employees on the payroll (including part-timers and employees on leave) in 20 or more workweeks (not necessarily consecutive) in the current or preceding calendar year. Under the current FMLA, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave during a 12-month period for any the “FMLA-qualifying” events.
An “eligible employee” is an employee of a covered employer who:
• Has been employed by the employer for at least 12 months.
• Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and,
• Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
A private employer is covered if it maintained 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year.
Once a private employer meets the 50 employees/20 workweeks thresholds, the employer remains covered until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year.
3. Can Herman imply that if Tony takes a leave of absence under the FMLA, he may not have a job when he returns?
Like FMLA “During FMLA leave, the employer is required to maintain the employee’s pre-existing group health insurance coverage, job-protected leave during a 12-month period for any the “FMLA-qualifying” events.” Upon returning from leave, the employee must be restored to his or her original position or to an equivalent position with equivalent pay, benefits and other terms and conditions of employment, including substantially similar duties and responsibilities. In addition, during FMLA-qualifying absences, employees may not be penalized for violating a company’s attendance policy. An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. The employer's policy regarding such reports may not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee's leave situation.
“If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.”
It may be necessary for an employee to take more leave than originally anticipated. Conversely, an employee may discover after beginning leave that the circumstances have changed and the amount of leave originally anticipated is no longer necessary. An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave. In both of these situations, the employer may require that the employee provide the employer reasonable notice ( i.e. , within two business days) of the changed circumstances where foreseeable. The employer may also obtain information on such changed circumstances through requested status reports.
4. Who is covered by the Family and Medical Leave Act (FMLA) of 1993?
“The Family and Medical Leave Act of 1993, as amended, (FMLA or Act) allows “eligible” employees of a covered employer may take job-protected, unpaid leave, or substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 26 workweeks in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.”
FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.
“FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees and work at a location where the company employs employees within 75 miles. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:
• For the birth and care of the newborn child of an employee.
• For placement with the employee of a child for adoption or foster care.
• To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
• To take medical leave when the employee is unable to work because of a serious health condition.”
Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.
Time taken off work due to pregnancy complications can be counted against the 12 weeks of family and medical leave.
A final rule effective on January 16, 2009, updates the FMLA regulations to implement new military family leave entitlements enacted under the National Defense Authorization Act for FY 2008.
5. To what extent may an employer can make his or her own determination as to the eligibility of an employee under the Family and Medical Leave Act?
The law says that “Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division.”
When an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances.
An “eligible employee” is an employee of a covered employer who:
• Has been employed by the employer for at least 12 months, and
• Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave.
• Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

References:
Waldfogel, Jane, Family leave coverage in the 1990s, http://www.bls.gov/opub/mlr/1999/10/art2full.pdf

Halbert, T, & Ingulli, E. (2010). Law and Ethics in the business environment. Mason, Oh: Cengage. http://ecfr.gpoaccess.gov, 73 FR 68073, Nov. 17, 2008, The Family and Medical leave Act of 1993