Family and Medical Leave Act

Law Ethics and Corporate Governance

Executive Summary

When most employees think of benefits, the first thing that comes into mind is vacation days, personal days, and bonus. The Family Medical Leave Act is another benefit that is not very common, but is accessible if an employee is working for a company that employs over 50 employees within 75 miles from the worksite. It offers employees the benefit to take up to 12 weeks (26 weeks for Service Members) of unpaid work and secures the employees job.

The Family Medical Leave Act was created to give employee the right to take care of love ones and themselves during Medical condition. It gives employee the right to take responsibilities of natural ways of life such as the birth of a child, adoption of a child, and the care of a love on in serious illness. Even if the employee is unable to work do to medical purposes, they employee also has the benefit to take time off.

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 Medical Leave Act specifically states that an employee has the right to take advantage of the FMLA benefit that he/she is covered under to take care of a member of family such as child, spouse, or parent in serious health conditions. There is no rule that exempts a child from caring for the parent regardless of the relationship, or financial responsibility (Halbert & Ingulli, 2011).

In the video between Tony and Herman, Tony explained to Herman that he had intension of taking care of his sick father. Herman agreed with the idea, but then disagreed about the caring of Tony’s father once Herman found out that Tony wanted to take a 3 week leave. Herman’s excuse to Tony was that Tony was a great salesman and offered Tony to take leave in the next few months, but not now since the dealership was selling cars quick. Since Tony was planning to take the leave on such a busy time of the year, Herman threatened Tony that he would be losing his job is he decided to take care of a stranger that was in his own home. Herman did violate Tony’s right to care of his father regardless of their relationship and the threat was unacceptable if Tony is covered under the FMLA.

Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.

It is important to under that if a company has more than 50 employees within 75 miles from the work site, it is required by law for the business to provide its employees FMLA leave. FMLA leave is also known as the 50/75 rule, which indicates that the employer is responsible in offering the benefit to its employee within that range. If the company is smaller than 50 employees it is not required to offer the FMLA, but the employer can satisfy the benefit if it’s offered in the employer’s employee handbook. The story behind Tony and his boss offers an example of what can happen if Tony takes his leave under the 50/75 rules. In this short film Tony mentions that the dealership employees over 50 employees, which in this case Tony is eligible for the 50/75 rule, but the boss also mentioned that some employee are part time. Though we do not know whether the dealership has more part timers than full timers, technically if there is over 50 employees, Tony is eligible for taking FMLA (United States Department of Labor, 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.

The filmed lack enough information to justify if Tony qualifies for the leave of absence. First and foremost the amount of time of employment is going to be key for Tony. The rule behind the FMLA, an employee must be employed for at least 12 months. Though it does not have to be a term of 12 consecutive months, the amount of time to qualify Tony would be if he worked at least 1,250 hours during the 12 month period to qualify the employee under the FMLA. Overtime hours are included within the 1,250 hours our work, but any unpaid leave is not included. The hours worked take into account when the Tony’s leave starts. For example, if Tony does not meet the 1250 hour requirement when the proposal for leave is made, he can accumulate those hours before the leave starts to become eligible for the benefit. The second instance as mentioned before, if the dealership’s employs less than 50 full time employees, Tony can be at risk of not qualifying for the FMLA because it is at employers will to offer such benefit to their employees and in Herman’s case, fire at will. Moreover, if Tony is considered to be one of the dealership top 10% employees, then Herman has the right to fire Tony if he decided to take the leave because it is to the business’s concern to fulfill his position to remain as profitable as a business during the time of Tony’s absence. In Tony’s situation, if he qualifies for the 50/75 rule, then he should be granted up to 12 weeks of leave per year and can choose an intermittent leave so that he can choose to take certain days off and even work half days to take care of his father. In this instant he can work 4 hour days which will be translated as a half week of FMLA as long as the documents are approved by a health care provider. The "Certification of Health Care Provider" form MS 411 should be completed for an absence that may qualify as a FMLA absence. When properly completed by a health care provider, it contains the information required to determine whether the health condition satisfies the definition of a serious health condition (UPC, 2011).

Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.

Employees who are cover by the FMLA are those who have been employed by the business for at least a year or have works at least 1,250 over the previous 12 months. Those who qualify have the right to job-protected leave of up to 12 weeks of unpaid days off to hold care of a child, foster child, spouse, parent, & themselves for medical purposes and up to 26 weeks for service member who are ill or injured. It is required to make the notification 30 days in advance so that the employer has the opportunity to plan around its employee’s absence. The employee may be asked to submit a medical certification of serious illness condition and may be asked for two or three opinions at the employer’s expense. During the time of FMLA leave, the employer must maintain its employees’ health coverage under any group coverage plan. If an employee was ill and is ready to return to work, he/she may be required to submit a fitness for duty to return to work (United States Department of Labor, 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.

Employers have the right to hire their employees at will and fire at will as well. If the company has less than 50 employees on site, then it is not required to function under the FMLA. Though it is not required, some business offer benefits to offer its employee for ethical and security reason. In the case of Reaux v. Infohealth Management Corporation, Administration assistant Deborah Reanux received an employee hand book and went through its benefits. According the handbook, Infohealth Management Corporation clarified that the business satisfied the FMLA employee eligibility requirements. When Reaux became pregnant, she filled out the required paper work and was assured about her benefits by her supervisor and was allowed to take her FMLA leave once she had her newborn baby. Ms. Reaux was due to return to work on 9/11/06, but was fired days prior. Deborah quickly filed a suit against her employer for violating its promises. Infohealth Management Corporation responded to dismiss the suit because the company claimed that Reaux did not qualify under the 50/75 rule. Though it was true, the judge did not dismiss the case due to the fact that the company promised to fulfill her request and did not ably to its word. Ms. Reaux had written and oral assurance that she was going to be covered under the FMLA eligibly therefore she had the right to the benefit. The judge awarded Ms. Reaux for the unlawfulness of her termination (Ice Miller, 2011). In cases like these, employers must be very careful to not inadvertently subject themselves to various obligations that they cannot fulfill or how they award their employees benefits. Cases like this may become a burden to employers even when they are offering benefits as good faith just to turn around and deny any benefits to their own convenience.

References

DOL (2011). United State Department of Labor. Retrieved on May 9, 2011 from http://www.dol.gov/esa/whd/fmla

Ice Miller (2011). Employers Reaux the Day They Fail to Accurately Define FMLA Eligibility in Policies, Retrieved on May 10, 2011 from http://www.upi.com/Business_News/Business_Daily/2009/09/28/Under-50-employees-How-FMLA-could-apply-to-you-regardless/19922/

Ingulli, Elaine. Halbert, Terry (2010). Law and Ethics in the Business Environment: 2010 custom edition. Mason, OH: South-Western Cengage Learning.

UPI (2011). Small Business Advice, Retrieved 5/12/11from http://www.upi.com/Business_News/Business_Daily/2009/09/28/Under-50-employees-How-FMLA-could-apply-to-you-regardless/19922/