Jul 11, 2019 in Law

Family Related Issues Essay

1. Explaining 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 and Medical Leave Act is a legal and employment provision that provides all employees with job-secure unpaid leaves (DeIpo, A. & Guerin, 2009).  This is provided by the employer to any employee due to serious health conditions that limit the employee’s performance ability on her job. It is also provided for employees with sick immediate nuclear family members (Coleman, Hale, Ossip, Talwani, American Bar Association Federal Labor Standards Legislation Committee, 2006).

The provisions of the FMLA clearly stipulate that an employee can benefit from the family and medical leave to provide care and protection for a son, daughter, spouse or parent with a serious health condition (Ford, Notestine, Hill, American Bar Association, Tort and Insurance Practice Section, 2000). The provisions of this Act do not therefore explore the conditions of the family relations and issues for an employee to benefit from it. So long as the person for whom application for family and medical leave is being taken is a biological son daughter or spouse, the employee is eligible for family and medical leave (Ford et al, 2000).

In the case of Tony and his boss Herman, it is clear as stipulated in the Family and Medical Leave Act that Tony qualifies and should be given the advantages as provided for under this Act to go and take care of his sick and elderly father (Coleman et al, 2006). The fact that the father left Tony under his mother’s care does not imply that Tony cannot take responsibility over the health condition of his father. Tony is thus eligible to take advantages of the Family and Medical Leave to take care of his elderly father who is genuinely sick. The provision of care and support to a sick father is thus covered under the Family and Medical Leave Act. This provision can also imply any person who acted as the employee’s parent when the said employee was a child can be considered as the father (England & Guerin, 2009).

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2. Explaining 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 is definitely a significant determinant of Tony’s eligibility for family leave. Under the provisions of the Family and Medical Leave Act, businesses with at least fifty permanent employees must provide the employees with leave of absence as entrenched in the FMLA (England & Guerin, 2009). Besides, the Act provides that if a business has employees who work twenty or more weeks in the present or the preceding calendar years, they must be beneficiaries of FMLA.

In small businesses with less than fifty permanent employees, the Family and Medical Leave Act are not applicable. This means that Tony is not likely to be granted the leave under this provision on grounds that the business is small. Herman directly reminds Tony of this since the size of business is a significant aspect in the determination the eligibility for the family and medical leave (England & Guerin, 2009). Tony is pushing for the leave on grounds that that the business has more than fifty employees if everyone is counted. However, he may not benefit from the leave since the business is small and not all the employees are on permanent terms of contract in Tony’s business organization.  Therefore based on the business size, Tony is not eligible for family leave.

3. Explaining whether Herman can or cannot imply that if Tony takes leave of absence under FMLA, he may not have a job when he returns.

The Family Medical Leave Act stipulates who is eligible for leave. This is generally dependent on the reason for which leave is sought, the size and nature of the organization/business and the duration for which an employee has worked for the said organization or business (England & Guerin, 2009). These guidelines can thus be used to determine whether or not Herman has the liberty to accept Tony back from leave should he decide to take the leave. For example, given that the business for which Tony works is small and he is on a roll having sold only eleven cars according to Herman, he does not expressly qualify for the leave.

He can only be given the leave by Herman on a non-formal agreement but not under the provisions of the FMLA. Under the provisions of the Family and Medical Leave Act, Tony is not qualified for the leave given the size of the business and the number of permanent employees that Herman has. Given this condition and context, Herman can imply that should Tony take a leave of absence under the provision of FMLA, he may not have a job upon his return from the leave.

4. Describing those who are covered by the Family and Medical Leave Act (FMLA) of 1993.

The Family and Medical Leave Act cover employees who have been in a permanent employment agreement for a period of at least twelve months. Such employees must also have worked for not less than 1250 hours. England & Guerin (2009) clarifies that the twelve months threshold does not need to be consecutive. Besides, the Act only covers employees that are working for large businesses or organizations with at fifty permanent employees located within 75 miles of the place of work (England & Guerin, 2009).

The Act also covers all the employees that are working for public agencies and schools, the number of employees not withstanding.  The Act is thus meant to help workers to benefit from a work-life balance.  People who are employed as full-time teachers are also covered by the Family and Medical Leave Act (DeIpo & Guerin, 2009). This category of beneficiaries might not work for 1250 hours as required in the minimum threshold in the FMLA guidelines. This law therefore generally covers both full-time and part-time employees.

5. Explaining 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 can make his/her own employee eligibility for FMLA determination though only to a limited extent. This is mostly based on the mandate that the Act gives the employer in terms of evaluating the circumstances under which the leave is being sought, the reasons for the leave request and the size of the business or the organization that then employee is working for (England  & Guerin, 2009).

It is provided in the FMLA guidelines that the business or the organization must be having at least fifty permanently employed employees. The size of the business and the number of employees is often determined by the employer. To this extent therefore, the employer has some liberty in determining the employee eligibility for leave of absence under the FMLA (England & Guerin, 2009). In addition, the employer determines the eligibility of the employee since it is the employer that is given the mandate under the provisions of FMLA to show records of the length of time that the employee has worked.  However after these are ascertained, the employer loses the liberty of determination of employee eligibility.

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