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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 ‘absenteeism’ of a parent, whether emotional or physical, does not affect a child’s right to take advantage of the FMLA in order to care for his or her parent. In this case, the child wants to care for his parent even though he was absent for most of the child’s growing years. The fact that a person has an ongoing relationship with his or her parent is all that is needed to enable him or her to receive the considerations extended by the FMLA. The act considered the need for one to have an origin or a next of kin related to by blood or otherwise. Biological or adoptive parents as well as stepparents or any guardians, who stood as the ‘carers’ of a person can be recognized as his or her parents. The act allows all individuals to take time off from employment to care for their parents or guardians whenever it is necessary to do so. However, parents or guardians-in-law are not included in this arrangement.
Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the FMLA.
All institutions with fifty or more employees are expected to adhere to FMLA regulations. The regulations are very clear on labor laws and provide terms of references for all organizations. All private and non-governmental institutions are obligated to abide by the act. This is inclusive of part time staff and those workers that are currently on leave (Steingold, 2009). Covered company managers must award eligible workers a maximum of twelve workweeks of unpaid and job protected hiatus during the year for any activity covered in the FMLA. An eligible member of staff is any worker who has been working in a company for at least the whole of the last year. He or she must also intend to report to duty soon after the leave.
If the employee anticipates the need for leave, he or she must give the employer at least thirty days notice. This is to allow the employer to make the necessary arrangements in the reorganization of the labor force to cater for the lessened productivity. He/she must also comply with the employer’s usual procedural requirements for requesting leave. The worker should reference the reason for FMLA leave.
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.
Herman can imply that Tony would not be welcomed back to his job, though this would be an unwise move to make. Employers who do not comply with FMLA regulations risk attracting litigation along with the attorney’s fees and costs. While an employer must allow FMLA leave and maintain the employee’s benefits, he or she does not have to allow certain highly paid workers to return to their same jobs after the leave. Employers who suspect that the motives or leave taking is not sincere will also deny the leave. It is significant for Tony to prove the importance of taking the leave to care for his sick family member. He can do this by furnishing his employer with medical records that detail the needs of the parent.
Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.
The FMLA envelops the federal administration, national and municipal governments, classified and municipal primary and high schools. Private employers are included in the FMLA plan if they have 50 or more employees inclusive of fulltime, part time workers as well as those on leave. Members of staff are entitled to the provisions of the FMLA. That is if they have been working with their present employer for at least one year and if they have not taken another leave in the last twelve months. An employee may take twelve weeks of leave under the FMLA.
This leave may be taken in order to care for a sick child or another family member, such as an aged parent, or even one’s self. An employee can also take leave to care for a family member who has been wounded during the course of military duty. If the employee has more than one close relative who is recuperating from wounds sustained while on active duty, the individual may apply for another leave.
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.
Being bound by the eligibility as well as entitlement benefits that are guaranteed to all qualifying employees under the FMLA, employers cannot decide whether their employee should take a leave. They can, however, monitor criteria of qualifying work and scrutinize the reasons for the application for leave. They can also require that the employee take an unpaid leave when it is necessary (Jasper, 2005). Since bosses must respect all the qualifying criteria established by the FMLA, they may set documentation requirements to verify eligibility and to arrange for the worker’s absence. Though these requirements note exceptions for unplanned leaves, employees are usually asked to note their leaves at least thirty days in advance.
Though the FMLA carries many benefits for employees, it does leave employers with many issues to address. This accounts for why so many cases that have to do with employees rights reach the courts. Employers can hardly be faulted for aspiring to create the most profit from the employees they faithfully pay on a monthly basis. The FMLA can also be a disadvantage for workers who have not taken the time to save for their leave: having no income while on leave can lead to an extreme financial hardship for a family. While the FMLA stipulates that an employer cannot fire his workers when they take a leave of absence, there is no way of enforcing this. Many employers do hire new staff to replace those currently on FMLA leave. This culminates in lengthy court cases as the disgruntled employees seek to claim their rights. Employers, however, are not obliged to return highly placed workers to their former positions after their leave.
When a worker obtains the FMLA leave, the prevalent method that employers tend to use is assigning his or her work to other co-workers on a temporary basis (Guerin, 2009). Employees who cannot take leave are forced to absorb the extra workload of those who take it. Because of permissive FMLA regulations, leave is increasingly being taken with no notice. This leads to unscheduled overtime. When such leaves are requested based on illness, an employer has no guidelines by which to classify the illness as serious under FMLA rules. Additionally, if the tasks that were performed by the worker taking the leave were specialized, the employer has to foot the extra costs of temporary replacement. If the employer cannot temporarily replace the employee on leave due to financial constraints, the company suffers from reduced productivity.
The problem of high absenteeism and lowered productivity is a result of the Family and Medical Leave Act in many corporations (Aitchison, 2003). Many employees admittedly use FMLA for illnesses that previously had not required substantial periods away from the workplace. Employees who have been allowed to take a number of days from work will take the same number of days off the next month or year. This will happen even if they are not sick at that time. Co-workers will be also affected when an employee misuses the benefits of the FMLA. Their morale goes down, and soon they will also want to enjoy the benefit of an FMLA leave and will seek ways to make this a possibility. When this triggers a chain reaction, the productivity of the company suffers. The only way to restore order is to make major decisions concerning the workforce.
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