Legal Advice on Emergency Leaves - Essay Example

Legal advice to Bruce on his emergency leaves Facts of the Case Bruce’s wife, Mary, is unwell for over 15 years, causing him to leave work intermittently presumably to take care of her. He makes arrangements of obtaining caretaker help from his mother-in-law, who falls sick too before assisting Bruce. The first task for the mother-in-law was to take Bruce’s wife to hospital, but under the circumstances of a last minute change of plan, Bruce decides to take up the role and communicates the same to his boss, who is not happy about it. Disciplinary action is looming, since Bruce has taken too much time off unauthorized by the employer. Legal Position Every employee has a right to emergency leave to take care of dependants across many labor law jurisdictions. Public and private employees have equal access to time allowance in order to take care of their dependants, usually in form of unpaid emergency leaves. According to Miller (2012, p. 419), the Family and Medical Leave Act (FMLA) of 1993 was enacted to provide protection to employees who require emergency leaves to take care of family or medical needs. The Act provides for emergency leave allowances of up to 12 weeks per year for general employment environment, which is accordingly extended in certain types of reasons for the dependant’s emergency need. For instance, if the dependant needs care following an injury while on a military duty, the Act provides for emergency leave of up to twenty six weeks a year. Under the details provided in the case facts, it is not clear what the cause is for the illness that Mary suffers from. The bottom line, however, is that Bruce as an employee is entitled to a certain amount of time for emergency medical attention for his wife. Within the restrictions under the Act for the number of weeks allowed within a twelve months working period, the question of how procedural Bruce was in taking leave may be the cause of the stand-off as opposed to whether he had a claim (McFarlane 2012, para4). It is not clear how many days Bruce took the emergency leaves as well as the reason for the illness that his wife suffered from. As explained above, there are certain causes of Mary’s sickness that could extend the days allowance. The size of the organization in which Bruce works may also bring the consideration of the length of time that he has claimed for emergency leaves into perspective. Ordinarily, the duration of the leave within the twelve month period is dictated by the size of the employee base, which is assumed to be 50 employees (Hunter 2009, p183). However, certain states do not have reservations in the limit of number of employees in the organization in order for the emergency leave to be allowed. It is only logical for the employees to be allowed to take an emergency leave if there is enough cover during the absence, presumably from the pool of colleagues. The danger to life of the dependant may, however, compel the situation to be stretched to accommodate emergency leaves. In order to qualify for an emergency leave, the employee must satisfy the basic requirements of an emergency under the Act. According to the case facts, Bruce’s relationship with Mary qualifies to access an emergency leave on family grounds. Perhaps more definitions of marital status and relationship would require visitation, but the low threshold on cohabitation may dispel such doubts. In case the employer requires proof of entitlement, Bruce will have to provide some form of evidence to support the argument that Mary is his wife (Hunter 2009, p24). Although certain circumstances may make it impossible to prove such a relationship immediately, the requirement of evidence reasonable under the circumstances is a sufficient proof. Legal Advice Bruce’s position in this case is that though he is entitled to a medical emergency leave for his spouse’s care, there are limitations in the allowable number of days. The sickness of Bruce’s wife is reportedly a lengthy one, stretching to over 15 years. However, it is not verifiable how many days were allowed to Bruce on top of the ordinary employment leave extended to every employee (Davies 2004, p35). In order to absolve himself from possible harsh punitive steps at the disciplinary hearings, Bruce will need to convince the disciplinary panelists that he was exercising his rights as provided in FMLA of 1993. It is important to verify if the State labor laws provide for the minimum number of employees in the employing organization in order to qualify for the emergency leave. In such a case, he will need to understand the provisions of labor laws in terms of the exact allowable days and compare against his total days of emergency leave. It will be important to discuss the circumstances surrounding the emergency with the manager, and resolving such a case is dependent on the understanding reached by the negotiating parties. In case the provisions of the legal framework indicate that Bruce acted within allowable limits, it will be advisable to report any unnecessary punitive action being taken against him in the appropriate grievance procedure. Labor organizations are very helpful in assisting employees who potentially face tough treatment from their employers, and reporting harsh treatment will be an option available to him. As illustrated in Cortest v O'Toole, there are conditions under which employees should enjoy the right of emergency leaves (Collings 2009, para2). The period of time allowed to the employee should be reasonable according to the circumstances of the emergency. Though Bruce may find it easy to support his claim by virtue of legal provision of the right, he must ensure that his days off are within a reasonable limit and offer such an undertaking. He must take responsibility for flouting of any company policy during the allowable emergency days. 2. Response to Miriam’s application (Letter) Managing Director, Brook & Helton Associates, P.O Box 3268990, 16th Avenue 7251, Washington DC. 12th June 2012. Ms. Miriam Jordan, P.O Box 3268990, 16th Avenue 7251, Washington DC Dear Ms. Miriam RE: REFUSAL FOR WORKING TIME ADJUSTMENT This letter is in response of your request to change your working hours from your current schedule to one between 9.00 and 3.00pm. Following a review of the firm’s position as a young but growing entity, it is unfortunate that it is currently not possible for us to provide you with the adjustment as requested on your letter dated 1st June 2012. As you are aware, the position of assistant solicitor in our firm forms an integral role in our operations that peak during the time that the firm has allocated to you. In such a scenario, it will be difficult for us to run our business as dictated by the work demands, at least as it currently stands. Explanation As you correctly quoted in your application for the adjustment of your working hours, s.80F Employment Rights Act 1996 states that you have that right as an employee (N.A n.d, para3). Despite the fact that you qualify your claim by all the conditions provided in favor of the employee in 80F (1a and 1b), it is not satisfactory in our current circumstances. In view of our circumstances reviewed and read together with 80F (2), when your application is considered against the provisions of the Act in view of the employer, it is apparent that a few conflicts will arise if the adjustment was granted. 80F2b is specifically clear that such an application will require an explanation of possible outcomes of the changes in working time to the employer’s productivity. In your application, you did not provide any foreseeable impacts and how we are likely to face such challenges as a business entity. In order to assist you to come to an agreement with our position as it currently stands, we will need to tap the business opportunity covered by the assistant solicitor. Following our recent performance in court cases, we are not able to shift our working hours from the peak time when we are likely to recover from the difficult spell of operations. Since we are not also in a position to employ extra human resources to be spread across the time you specified, in view of the cost benefit analysis, we are compelled to reject your application. Possible Redress We kindly recommend to you two possible alternatives for a satisfactory outcome for the two parties as detailed below. a) Bear with the firm for the current work strategic plan in force until June 2013 b) Apply for an appeal through the appropriate appeal procedure Our Commitment Our commitment remains focused on offering the best family friendly services to our employees within the provisions of labor laws. Under our current constricted budgetary operations, it remains difficult for us to offer certain services, a protection offered to employers as provided in the highlighted section. This does not, however, intend to retain strict consideration in future with improvements in our human resource approach defined in our strategic plan when we will hire more solicitors. Since the current strategic plan is about to end, we can only undertake to consider your application later to allow you to enjoy your preferred working time without much strain on our operations. Yours Truly, Signed References Collings, J., 2009. Emergency time off to care for dependants, [online] Available from [Accessed 11 June 2012]. Davies, A. C. L., 2004. Perspectives on Labor Law, New York, NY: Cambridge University Press. Hunter, N. D., 2009. The Law of Emergencies: Public Health and Disaster Management, Oxford, UK: Elsevier Inc. McFarlane, A., 2012. Emergency leave for care of dependants, [online] Available from [Accessed 11 June 2012]. Miller, R. L., 2012. Fundamentals of Business Law: Summarized Cases, Mason, OH: South-Western Cengage Learning. N.A., n.d. Employment Rights Act 1996, [online] Available from [Accessed 11 June 2012] Read More