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Persuasive Part 3: Disadvantages, Answers with Visuals - Research Paper Example

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The bill was meant to give employees the flexibility needed to attend to pressing medical needs that affect the employees themselves or close relatives. Assuredly, while American workers have benefited from…
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Persuasive Paper Part 3: Disadvantages, Answers with Visuals
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The Advantages of the Solution to the Uncertainty of the Family and Medical Leave Strayer ENG215 May 23, Introduction FMLA was received with much enthusiasm during the time of Bill Clinton. The bill was meant to give employees the flexibility needed to attend to pressing medical needs that affect the employees themselves or close relatives. Assuredly, while American workers have benefited from the law; there has been major changes that have taken place in the two decades since the FMLA was signed into law, resulting in confusion and litigation. Relatively, in most cases additional laws have to be created, or the existing ones modified to reduce ambiguity in the law. Ambiguity presents problems because it leaves laws open to excessive litigation, which are costly to the courts and the concerned citizens. However, the FMLA has been a source of trouble for attorneys, courts and employers because of the ambiguity that characterizes most of its provisions. The Family and Medical Leave Act should be reformed to make it comprehensive and specific.
What is The Family and Medical Leave Act (FMLA) and should it be changed?
The FMLA came into effect in August, 1993 and has ended years of controversy since the signing of the bill. It provides employees with a job-protected leave in case of medical issues that affect close relatives or the employees themselves. The Act gives 12 weeks of leave within one year (Bartl & MacDougall, 2002). The laws specify that a medical leave should be taken if the health condition is serious if it renders an employee to unfit to perform essential duties (Neuson, 2006). It may also be triggered by a serious health condition that affects a family member who cannot manage to care for her or himself. However, the FMLA has been the recipient of heavy criticism and immense litigation because of its ambiguous nature. The lack of proper interpretation leaves the law open to abuse by employees.
The Ragsdale v. Wolverine World Wide, 122 S. Ct. 1155(2002) demonstrated that there is no clear definition on the directives that govern the leave within the Act (Bartl & MacDougall, 2002). In the case, the Supreme Court threw away that directive by the Department of Labor that requires employers to notify employees when the 12-week medical leave starts. The FMLA specifies that an employer should inform an employee of his or her right to a 12-week medical leave within one year. However, it does not provide specifications on whether the employee is obligated to notify an employer when the medical leave starts. A reform would be necessary to make clear the issue of leave duration. It can help avoid the immense litigation costs incurred in lawsuits.
A Problem Exists
The FMLA has also been the subject of many lawsuits and appeals because of employees who feel the leave duration is not adequate. The lack of a provision that provides thoughtful alternatives to the problem of employee termination after the 12 week FMLA leave has been a concern (Wymer & Stillwagon, 2014). Some people can argue that the employee should be given time because of a medical condition is beyond one’s control. The FMLA recommendation is that an employer can only provide the extension of the designated leave it is not a huge inconvenience. A critical view of both the employee and employer reveals that longer leave can be too costly to the employer. Regardless, the employer has an option of hiring someone to fill in the position of the sick until the employee is ready. The FMLA can be reformed to include a provision that recommends employers to give priority to employees who have been terminated due to sickness in future vacancies if one qualifies (Wymer & Stillwagon, 2014).
The lack of clear definition of a serious health condition has subject the Family and Medical Leave Act to abuse by many employees. Cases of employees calling to take their 12-week leave just before the start of their shift are common. Consequently, an employer is left with the trouble of finding a replacement. The situation can inconvenience other employees who are compelled to work for longer periods to cover for the absent employee. Some employees can also ask for their 12-week leave because of simple migraines that do not render them unable to perform essential duties (Bartl & MacDougall, 2002). It is imperative to implement FMLA reforms that provide a clear definition of a ‘serious health condition’. It should also require employees to provide an early notice or report any signs of serious medical condition to the employer. It would give the employer time to prepare.
Conclusion
The Family and Medical Leave Act should change because it has been the source of costly litigation to both employees and employers. FMLA is faced with the problem of ambiguity. The law does not provide clear provisions on whether an employer should notify an employee that the leave has started or not. The Department of Labor provides the directive, but the Supreme Court struck down that directive in the Ragsdale v. Wolverine World Wide. The length of the duration provided by the FMLA has been a source of debate with some people feeling it is too short or too long. The law suffers from the lack of a clear definition of a serious health condition. The problems can be solved by reforming the FMLA to make it comprehensive by giving exact directives on leave notifications and a reasonable leave duration. The leave duration can be solved by allowing employees to terminate employment after the 12 week period at their discretion. However, an employer should give terminated employees a priority in future position if they qualify.
The Advantages of the Solution to the Uncertainty of the Family and Medical Leave
Introduction
The Family and Medical Leave Act has been a source of costly litigation to both employees and employers due to its ambiguity. Some of the ambiguous provisions of the Act have been discussed in the previous part, and this part will discuss the solution to this problem. From part one, it was noted that the FMLA does not have clear provisions on whether an employee should notify an employer that the leave has started or not. The length of the duration provided by the FMLA has been a source of debate with some people feeling that it is too short or too long. Also, the law does not have a clear definition of what a serious health condition is.
Solution to the ambiguity problem
Ambiguity in a law usually leads to misinterpretation by the concerned parties, and this may have an adverse impact on the affected parties. As a result, the parties seek a legal interpretation of the law, which may be too expensive for them. This is the case for the Family and Medical Leave Act, which has led to excessive litigations, which are costly to the courts and the concerned parties. The best solution for this problem is reforming the law so as to clarify the controversial provisions.
On the major issue of whether or not the employees should notify the employer before taking the leave, the law should be reformed in order to give a clear procedure on how the employees should apply for the leave (Neuson, 2006). There should be an understanding between the employer and the employee in regards to the implement the provisions of the law. Sometimes, the medical situation may require an immediate actions and lengthy procedures for applying for the leave may be inappropriate and, therefore, the FMLA should be reformed to provide clear procedures for dealing with both emergency and non-emergency situations.
The other issue is on the duration of the leave. This issue may also be addressed through reforming the FMLA. In some cases, the employees may require either a shorter or longer leave time than the one provided by the FMLA. To defend both the employers and the employees, the law should be reformed in order to clarify the situations where the employee qualifies for a leave extension. The employers should also be allowed to hire someone to fill in the position of the absent employee until the employee is ready. If the employee is incapacitated for a long period resulting in a layoff, the FMLA could be reformed to include a provision that recommends employers to give priority to these employees after recovering (Mayer, 2013).
The other clarification of the FMLA should be on the definition of what a serious health condition is. To avoid employees just asking for the FMLA leave so as to avoid work, the law should be changed so as to give clear threshold about who qualifies for the leave (Mayer, 2013). This will protect the employer who bears the cost of finding a replacement and the other employees who might be left with many workloads due to the leave.
Advantages
Eliminating ambiguity within the FMLA has several advantages. The first advantage is that it protects both the employers and employees. The employees are protected from being subjected to disciplinary actions against them because of taking the leave. The employees have a job security, and they can meet their family’s demanding obligations (Neuson, 2006). On the other hand, reforming the law will protect the employers from undergoing any losses due to employees taking immediate FMLA for the purpose of only avoiding work. Providing clear thresholds of who qualifies for the leave will limit many employees from taking unnecessary leaves.
The second advantage of reforming the FMLA is that it will reduce excessive litigations that have cost both the employees and the employers much money. Many workers have sued their employers for infringing on their right to job-protected leave as provided for in the FMLA. On the other hand, the employers argue that they have not broken the law. Reforming the law will make it clearer and reduce the dependence on court proceedings for interpreting the law, which may be very expensive for either side (Berkeley Center for Health, 2011).
The third advantage of reforming the law is that it promotes understanding between the employees and the employers. The employers would be able to understand the times when their employees really need time off and it would be very easy for the employer to process quickly the required documentation in order to allow the employee to go on FMLA leave (Neuson, 2006). On the other hand, the employee will not be worried that he or she will face any job problems as a result of requesting the leave. This understanding promotes a good relationship between staff and employers, thereby enhancing the productivity of the employees.
Conclusion
Ambiguity within the law can be best resolved through reforming the law to address the controversial provisions. In the FMLA, some sections of the law are unclear, and this has led to misunderstanding between the employees and employers, with each side having their view of the provisions of the law. Reforming the law will protect the interests of both the employers and the employees, reduces expensive litigations and promote a good relationship between staff and employers.
Disadvantages
The Family Medical and Leave Act (FMLA) bill that was introduced in the United States in 1993 had several ambiguities which meant that the law to be passed would have numerous disadvantages if applied. The bill contained disadvantages to both the employees and the employers.
On the part of the employers, the bill meant that employees had the right to demand a medical leave at their will and wish. This left the employers stranded on how to substitute the sick employees. The law did not specify clearly the conditions under which the employees could be given the medical leave and for how long. For example expectant mothers who deserve a 12-week leave could not be allowed the same period of medical leave to an employee having a simple illness. Such long leaves, on the other hand, caused high financial expenses to the employers as they hired new employees to replace the employees on leave. All the disadvantages on the employees led to high cost of production in any organization since they have to hire a new employee when an employee is on leave (Scharlach & Grosswald, 1997).
On the part of the employees, the law was ambiguous on the specificity of an illness and the length of the medical leave awarded. This left the employees at the risk of being awarded some insignificant leaves some too long and others too short for the illness the employee is suffering from. This law contained several disadvantages including absenteeism, low employee morale and unexpected law suites to the employees. Some employees often found themselves sacked after being given a lengthy medical leave making them sue their employers who are quite costly for them (Smoler, 2014).
FMLA bill leaves employers at a state of indecisiveness about some important implementation decisions, which should be considered in the context of a companys human resource and benefits policies. For example, employers need to decide how to integrate paid and unpaid leave, whether to voluntarily offer job guaranteed leaves to key personnel and others exempted by the FMLA, whether to continue group life insurance and other non-health benefits while employees are on leave, and whether to extend family leave and other benefits to include family members and loved ones other than a spouse, parent, son, or daughter (Scharlach, Sansom & Stanger, 1995)
The graph shown below is a representation of the number of paid and unpaid weeks of the medical leave. This chart shows clearly that much of the time the employees are on leave they go unpaid which is a great disadvantage to them
Conclusion
In conclusion the FMLA came with ambiguities that presented numerous disadvantages including low morale among employees, increased the cost of production for employers and unexpected lawsuits for both employees and employers. Solving the ambiguities would streamline the operations of this law and hence make it appropriate to apply without impacting negatively on the employees and employers.
References
Bartl, T. J., & MacDougall, H. L. (2002). Ragsdale v. Wolverine World Wide: The First Step Toward FMLA Reform. Employee Relations Law Journal, 29(2), 73-92.
Neuson, B. A. (2006). What You Dont Know About the FMLA Can Hurt You. Nursing Management, 14-17.
Wymer, J. F., & Stillwagon, B. A. (2014). How Much Leave is Enough? Employee Relations Law Journal, 40(1), 22-29.
Neuson, B. A. (2006). What You Dont Know About the FMLA Can Hurt You. Nursing Management, 14-17.
Berkeley Center on Health, Economic & Family Security. (2011). Reforming Family and Medical Leave Laws: Promoting Health and Economic Security for California’s Working Families. Retrieved from http://www.working-families.org/publications/FMLpolicybrief_revised.pdf
Mayer, G. (2013). The Family and Medical Leave Act (FMLA): Policy Issues. CRS Report for Congress. Retrieved from http://assets.opencrs.com/rpts/R43214_20130904.pdf
U.S. Department of Labor, Labor Force Participation Unchanged Among Mothers with
Young Children, News, 88 (September 1988): 431-435
Scharlach, A. E., Sansom, S. L., & Stanger, J. (1995). The Family and Medical Act of 1993: How Fully is Business Complying? California Management Review 37(2): 66-79
Scharlach, A. E., & Grosswald, B. (1997). The family and medical leave act of 1993. The Social Service Review, 335-359.
Smoler, A. R. (2014). The Family and Medical Leave Act of 1993. Employee Rights Litigation: Pleading and Practice, 2. Read More
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