Family and Medical Leave Act - Research Paper Example

? Family and Medical Leave Act Law Family and Medical Leave Act (FMLA) requires that employers who are covered under the Act to give their employees unpaid leave for family or medical reasons. The Act is informed by the fact that in modern society, there is increased need for balancing of work, family, and personal obligations. It should be noted that the there are eligibility criteria that has to be fulfilled for employers and employees for the provisions of this Act to apply on them. This paper will address various aspects that are related to FMLA and provide brief discussion on them. A1. Addressing the Question of whether 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 to care for that parent FMLA provides that every eligible employee is entitled to take up to 12 weeks of work leave to take care of a parent suffering from a medical condition. This leave is usually unpaid and the employee’s job is protected during this period1. A parent is defined by the FMLA as a foster, step, biological or adoptive parent, including any individual who represented loco parentis to the employee while he or she was a child2. Loco parentis, means where an individual takes the responsibility of caring for the child with which he has no legal or biological connection. However, the FMLA does not cover leave for parents- in- law, whereas the military has its own provisions as pertains to the definition of a family3. With reference to the case scenario illustrated, the employee qualifies to take a FMLA leave to take care of his or her biological parent even if the parent did not take care of him as a child (United States Department of Labor, 2010). However, in the cases of a loco parentis the FMLA outlines other individuals whom an employee is allowed by law to go and see in case of illness or accident. These are individuals who acted as proxy for the child in the absentia of his parents and, thus, qualify to be their parents more than their biological parents. In this case scenario, if the loco parentis and the biological parent to the employee happen to be ill, the law provides for the cover of loco parentis unlike the unavailable parent because this is the person who took care of the employee. However, the employee needs to provide documented evidence that ascertains that the loco parentis actually took care of him or her during childhood (United States Department of Labor, 2010). A2. A Discussion as to Whether the size of the business can have any effect on whether employee is eligible for family leave under the FMLA A company that has 50 or more employees is required by the FMLA regulations whether the company is non- profit or profit making; private or public. This is since small businesses have been documented to have employees who are less than 50 during a specific period of time. However, in case the company has had 50 employees in the past 20 weeks prior to the current slope in employee number, FMLA requires that the company complies with the FMLA regulation. In case the company has not had 50 employees, the 20 week factor of having a continuous 50 employee is the consideration factor (United States Department of Labor, 2001). Consequently, whether a company has full time or part time workers determines the application of the FMLA. A company that has part time workers is required by the FMLA to provide 12 weeks unpaid leave for an employee either for medical or family reasons on condition that the employee has worked for at least 1250 hours. This excludes time off and the part time employee needs to have worked for more than 12 months to qualify for this recommendation. Though the leave of part time workers is unpaid, FMLA expects that the company will continue providing health care benefits for the employee on leave, and consequently restore him or her to his original position once their leave is over (United States Department of Labor, 2001). A3. A Discussion on Whether an Employer Can or Cannot Imply That If Employee Takes A Leave Of Absence under the FMLA, He May Not Have A Job When He Returns The FMLA provides job benefits of the employee in the following way: an employer is required to maintain the health cover of the employee for the duration that the employee is under the FMLA leave. Consequently, it requires that once the employee has returned from leave, the employee needs to be restored in his correspondent position if not original position with similar terms of employment, benefits and pay. Moreover, the FMLA provides that an employee is not to lose his employment or benefit that might have ensued prior to commencing leave. The act also entails that it is unlawful for any employer to deny, restrain or interfere with the employee’s privileges under the FMLA. Consequently, an employer should not discriminate any employee who challenges an employers’ unlawful practice of FMLA (United States Department of Labor, 2001). An employee who takes a leave under the protection of the FMLA is protected by the Act and, hence, can file litigation against the employer if this is violated. This is evidenced in the case of Draby v. Bratch4 where the 8th Circuit ruled on a case where an employee had filed a case against her employer. The facts of the case entail that the plaintiff returned to work after having taken a FMLA covered leave. One of her supervisors avowed that she be terminated since she had taken an extensively long unpaid leave while her other supervisor declined to recommend her for a promotion. This led to the plaintiff resigning and consequently re-applying for the job again. Apparently, the plaintiff was informed that she could not get hired back as the report her supervisor had submitted of her taking an excessively long unpaid leave had not been decide on. This led to the plaintiff suing her employer and supervisor due to their retaliation, yet the FMLA gave her the rights to take the leave. The court ruled in favor of the plaintiff and litigation was exercised against her supervisor and employer. This entails that an employer cannot deny an employee to take the job back if the leave taken was covered by the FMLA5. A4. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993 The Family and Medical Leave Act (FMLA) of 1993 is a federal law in the United States that provides a means to have a balance between the family and work by having leaves which are unpaid for due to specific reasons, such as family and medical reasons. The purpose of the Act is to enhance economic security and stability of families, while at the same time promoting the interest of the nation in families’ integrity preservation. Before this Act was passed, the discretion of granting leave to employees had relied upon individual employers. The Act applies to all employers in the private sector who are involved in commerce and related industries; the employer should have 50 or more employees and each of the employees should be working at least 20 calendar weeks in the present or preceding year. In addition, the law applies to all public agencies, that is, local and state governments and local educational agencies, whether private or public (United States Department of Labor, 2001). In the case of public agencies and education agencies, employers do not have to meet the 50 employee threshold. Furthermore, the Act covers most of federal employees; the regulation that covers federal employees is the Office of Personnel Management. The FMLA stipulates that the person covered under the Act should attain the following qualifications: the employees should have worked at least for the 12 months and these months do not necessarily have to be consecutive. Also, the Act requires that the person covered should have been employed by the employer who is covered and that he/she should have worked at a worksite within 75 miles in an event that the employer has not less than 50 employees. Additionally, an eligible employee should have worked for 1,250 hours or more during the immediate 12 months prior to the date FMLA leave starts. It should be noted that the Act provides an entitlement of up to 12 weeks of unpaid, job-protected leave during any calendar year for the following main reasons: care of an employee’s immediate family member suffering from serious health condition; birth and subsequent care of the employee’s child or foster care or adoption placement; as well as care of serious health condition of an employee. Besides, it is worth noting that the following employees are not covered in the Act: workers who need continuous time off for routine medical check- up; part- time workers who have worked for less than 1,250 hours with one calendar year; and workers who require time off to recover from common illnesses such as cold (United States Department of Labor, Wage and Hour Distribution, 2010). A5. 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 As has been noted, it is the FMLA that determines the eligibility of individuals under the Act. Additionally, the Act defines the circumstances under which employees are allowed to take a leave of absence for either family, medical, or both reasons. Therefore, it is clear that under normal circumstances and in strict adherence to the provisions of the Act, the decision to determine the eligibility of individuals is not of the employer. That notwithstanding though, the employer can try to determine the eligibility by confirming the truthfulness of the reasons provided by the employee who is seeking leave of absence as provided for under the Act. It is important to point out that the employer should not resort to tactics such as threats or coercion in with an intention to prevent the employee from taking a ‘rightful’ leave. Moreover, it should be noted that an employer cannot deny FMLA leave to an employee who is not yet eligible for such leave since he or she is not covered. In the case of Pereda v Brookdale Senior Living Communities, Inc, where the company denied Pereda FMLA leave and terminated her for claiming right to take FMLA leave, the court ruled that Pereda was eligible for FMLA leave.6 This decision was informed by the court argument that the calculation of eligibility of employees under the Act should be as of the date the leave begun and not as of the date of requesting the leave. It is clear that employees are protected by the Act if they report a future need for leave of absence under FMLA even if they have not attained the eligibility status. Furthermore, it should be noted that in an event that the employer grants leave to employee before he or she becomes eligible as required by the Act, then any leave that is taken in the first year of working cannot be calculated against the FMLA allotment of the employee. References CASES Darby v. Bratch 287 F.3d 673 (8th Cir. 2002) Pereda v Brookdale Senior Living Communities, Inc 60773- FAM (11th Circ. 2012) ACTS 29 USC 2612 (a) (1) (C) 29 C.F.R. § 825.122 (b) 29 C.F.R. § 825.122(i) BOOKS, JOURNALS, ARTICLES, PUBLICATIONS United States Department of Labor (2001), Your Rights under the Family and Medical Leave Act of 1993, Washington, D. C, U. S. Government Printing Office, Accessed on January 30, 2012 from http://www.yale.edu/hronline/forms/documents/FamilyMedicalLeaveAct2.pdf United States Department of Labor, Wage and Hour Distribution (2010), Fact Sheet #28C: FMLA leave to care d=for a parent with a serious health condition on the basis of an in loco parentis relationship, Accessed on January 30, 2012 from http://www.dol.gov/whd/regs/compliance/whdfs28C.pdf Read More