Assignment 2, Family Related Issues
Instructor Theresa Dike
Law, Ethics, and Corporate Governance – LEG500
May 1, 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.
The way that the Family and Medical Leave Act (FMLA) is written, it does not specify whether or not a biological parent participated in the upbringing of the child or not. The definition of a parent is broad for the purpose of FMLA use. A parent is defined as a biological parent, adoptive parent, step parent, foster parent or an individual who assumed duties as your parent. An individual that assumes duties as your parent is called “loco parentis”. If an employee is trying to take leave for his or her loco parentis they may be required to provide documentation of the relationship.
In this case Tony has asked to take leave to move his father from the nursing home to his apartment. According to FMLA the parent must be qualified as having a “serious illness” In my opinion moving his parent of the nursing home isn’t a qualifying event according to FMLA standards. Regardless, the answer to the question is, no it doesn’t matter if the biological parent had anything to do with the biological child for the child to take advantage of FMLA.
2. Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
In the private sector, the size of the business does matter when it comes to the Family Medical Leave Act. “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.” (dol.gov).
In this case Tony works for an automobile dealership and video mentions that there are fifty employees but does not mention if they work twenty or more weeks of the calendar year. Herman threatens that Tony may not have a job upon his return but doesn’t reference whether or not the dealership meets the qualifications of FMLA or if Tony’s request is covered under the FMLA guidelines.
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.
An employer may not discipline, discharge, or take any other adverse action against an employee requesting FMLA; FMLA was designed to stop this kind of threat. FMLA was enacted to protect employees who needed to take time off to care for their family or their own medical issues. “How an employer treats an employee's use of unprotected, non-FMLA leave may, in some circumstances, violate the FMLA.” (Bosland).
Herman is putting the dealership in a bad position by reacting the way he has. Implying that Tony may or may not have a job when he returns from his leave of absence can put the dealership at risk of a lawsuit. In the case; Almeida v Athena Health Care Associates the judge ruled in favor of the plaintiff partially because of her supervisor’s remarks after the employee requested additional leave.
4. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.
The Family Medical Leave Act (FMLA) was put into place to allow employees to balance their work responsibilities and the family responsibilities without fear of retaliation. It protects both the employee and the employer; because of this the Act was written very carefully. FMLA is very specific as to employee eligibility. The employee must; work for a covered employer, have worked for the employer for a total of twelve months, have worked at least one thousand two hundred and fifty hours over the previous twelve months and work in the United States or a United States territory. FMLA is also specific as to the circumstances it can be used for. “The FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave for specified family and medical reasons.” (dol.gov). The medical reasons are; birth or care of child, adoption or foster child placement, care for immediate family member with a serious illness or certain military qualifying situations. A covered employee is eligible to receive a total of twelve weeks unpaid leave during a one year period; this does not mean that all of the leave must be taken at one time. The leave can be taken incrementally. The employee must provide documentation so that the employee can determine whether or not FMLA applies.
In this case all of the factors above are unknowns. We know that the dealership employs fifty employees however we do not know if they have worked twenty weeks in the calendar year. We also don’t know if Tony’s request can be applied to FMLA; he will need to submit documentation before a determination can be made.
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.
FMLA clearly states what employees are eligible and what situations an employee can request the leave of absence. It is the responsibility to verify if the employee is eligible according to the guidelines provided in the FMLA. “It cannot be emphasized enough that it is ultimately the employer’s responsibility to determine if a request for leave qualifies under the FMLA.” (Keller & Associates). If the employer qualifies as a covered FMLA agency they are required to provide FMLA’s provisions in their employee handbook. “FMLA law states that it is the employer’s responsibility to provide the necessary FMLA paperwork to its employees if they express the need for leave.” (dol.gov). The employee is responsible for completing the “FMLA Medical Certification Form” and the employer is responsible for completing the “FMLA Notification Form”. An employer should have a policy in place addressing FMLA and the procedures for an employee to request to use FMLA.
In the case it is not apparent if the auto dealership has a policy in place regarding FMLA. Rather than reacting in the way that he did Herman should have suggested that Tony contact the Human Resources Department for guidance. The request will need to be examined to see if it is eligible under the FMLA guidelines.
Summary
The Family Medical Leave Act was created in 1993. The Act was meant to protect employee who need help balancing work and family responsibilities. When they have family or personal obligations that they must tend to and the obligation will interfere with their ability to work they have the option of taking twelve weeks of unpaid/excused leave every year. FMLA is very specific in who is eligible and what conditions qualify the eligible employee to use FMLA.
Herman handled the situation with Tony wrong from the beginning. He should have recommended that Tony contact the auto dealership’s Human Resources Department. By reacting to Tony requests with a threat, Herman set the auto dealership up for a law suit.
References:
Bosland, C. (2009). Threatening Termination for Any Leave After Expiration of FMLA Leave Interfered With Employee FMLA Rights. Retrieved from: http://www.typepad.com/services/trackback/6a00d8341c751253ef01127966125a28a4
Keller & Associates, J.J.. FMLA Revealed: Understanding Leave Requirements. J.J. Keller. © 2008. Books24x7. (accessed April 29, 2011)
King, N. (1999). The Family Medical Leave Act: An Ethical Model For Human Resource Policies and Decisions Retrieved from: http://www.lawmemo.com/articles/fmla.htm
Luchansky, B. (2011). Does the Family and Medical Leave Act Apply? Retrieved from: http://www.kollmanlaw.com/articles/article19.html
Halbert, T. & Ingulli, E. (2010). Law and Ethics In the Business Environment. Mason, OH: Cengage Learning.
Retrieved from: http://www.dol.gov/whd/fmla/