Family Medical Leave Act: employer size and parental care eligibility

¶ … 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.

The family Medical Leave Act (FMLA) gives no determination that states that the known relationship or lack thereof between the child and parent will determine the child's ability to use FMLA to care for the parent. Any employee can request FMLA regardless of if the child had nothing to do at all with the biological parent. The FMLA provides the employee with up to a maximum of twelve weeks of un-paid, job-protected leave for one of the following reasons:

Care of a spouse, daughter, son or parent with serious health conditions

Due to an employee's inability to work due to a serious health condition

Placement of a child for adoption or foster care

The birth and care of a newborn child

Specific situations related to the employees, his or her spouse, or children in association of active duty.

A parent as defined under the FMLA is either the biological parent or the person who acted as the parent when the employee was a child. A son or daughter is either biological, adopted, under foster care, a stepchild, a legal ward, or any child that the employee is assuming parenting responsibility. The child must be under the age of 18 or over age 18 if, a mental or physical handicap is present. Employees are also entitled to have their benefits maintained as long as they continue to pay their portion during the leave and have the right to return to work with the same or equivalent position, and relative pay (Larson, 2011, p. 1).

2. Explain whether the size of the business can have any effect on whether Tony is eligible for family leave under the Family and Medical Leave Act.

The FMLA does not apply to every employee. The Act does not apply to small employers, or to employees who have been hired recently. Although the exceptions to coverage are few, they are worth exploring every time an employee requests leave. In each case, there are two coverage questions. First, is the employer covered by the FMLA? Second, even if the employer generally is covered, is the specific employee who is requesting leave eligible for FMLA benefits? The questions must be considered separately, in that order. The FMLA applies only to employers who have had 50 or more full, part-time, or temporary employees on their books for 20 or more weeks during this calendar year or during the last calendar year. Once an employer has had 50 employees on its books for 20 weeks, the employer is covered by the Act -- both for this year, and for the next calendar year. This is true even if the payroll drops below the 50-employee mark during those two calendar years -- the employer is still covered until the two years expire.

There are two categories of non-eligible employees. First, employees are not covered until they have worked for the company for more than 12 months (not necessarily consecutively), and until they have worked 1,250 hours during the last 12 months. Recent hires, therefore, are not automatically covered under the FMLA - even if the company generally is. If there is any doubt about whether an employee who is requesting FMLA leave has reached this service requirement, the employer should check his length of employment before granting or denying leave. If an employer grants FMLA leave by mistake to an ineligible employee, the employer cannot change its mind once the leave has begun, the employee will be protected (Kollman & Saucier P.A., n.d., p. 1).

3. 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.

Employers not covered by the FMLA may establish their own policies about the length of leave available to employees, may determine the notice requirements that employees must follow to request leave, and may retain the discretion to grant or deny leave requests, subject only to limitations created by other laws, such as the Civil Rights Act of 1964 and the Americans With Disabilities Act. For example, exempt employers must provide leave for pregnancy to the same extent it provides leave for other temporary disabilities. A second exception exists for employers with scattered work sites, such as construction companies. Even if the employer has more than 50 total employees in its home office and on crews in different regions, employees are eligible under the FMLA only if they are employed at a work site where there are 50 or more employees within a 75-mile radius. If fewer than, 50 employees are hired for job sites that are within a 75-mile radius of each other, those crews are not covered by the FMLA (Kollman & Saucier P.A., n.d., p. 1).

Under FMLA Herman may not threaten Tony's job, however Tony's situation does not comply with the requirements set out in the FMLA. If Tony's father had a severe illness that did require him to care for his father than his position would be protected for the standard 12 weeks under the FMLA policy. Tony stated that he simply wants his father to come live with him after a scheduled surgery to see after him. However, there is no dire need for Tony to care for his father, so if he does in fact take the time off he may not have a job when he decides to return in three weeks. Unfortunately, Herman would be within his full rights considering the fact that the requirements of the FMLA have not been met under any circumstances.

4. Describe who is covered by the Family and Medical Leave Act of 1993.

The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.