|← Law Making Process||Fifth Amendment →|
Question 1: Explaining Biology and FMLA services
The Family and Medical Leave Act [FMLA] of 1993 is an American federal law that demands that large scale or larger employers to make sure that employees are provided with job protection in the event of an unpaid leave, following serious health condition which may make the employee in point unable to perform his work, or take care of a sick family member or a new child, in case of adoption or foster care. The provision and modalities exist under the Employment Standards Administration Wage and Hour Division, under the aegis of the United States Department of Labor (Sitkoff, 2002).
It is not necessary that FMLA be restricted to the biological parent. This follows the amendments that were done in 2008 and the June 22nd, 2010 abrogation which made further clarifications on the definitions of "sons" and "daughters" in the FMLA. This was meant at ensuring that an employee who wants to assume the role of a care giver receives parental rights to the family leave, the absence or presence of legal or biological relationship notwithstanding.
This ensures that FMLA services can be extended to a child or a parent who is not biologically related to the signatory.
Nevertheless, it is important to take to stock, the fact that definition of those who are to benefit from FMLA services vary from state to state. For instance, Wisconsin acknowledges the extension of the same FMLA services to parents-in-law, while Vermont and Connecticut adds therein, the civil union partner. District of Columbia on the pother hand covers those who are related to the employee by blood; those who are under the employees' legal custody; and the employees' legal spouse.
Question 2: Impacts of business size in relation to FMLA leave
The FMLA Act states that each individual who qualifies for the FMLA leave is eligible to a twelve weeks leave and in which his or her job remains secure till the employee resumes. For one to be eligible to the FMLA leave, the size of the organization that one is an employee in plays a very essential role. It is stated that an employee only becomes eligible to this leave if the organization employs fifty or more employees within a 75 miles worksite. This is applicable to both the private and public corporations. Similarly, an employee is legible to this leave if he or she has worked for 12 or more months with a minimum of 1,250 hours and above in the past twelve months (Miller & Jentz, 2007).
Relating to the story and the conversation held by Tony and Herman, a lot of information relating to the business has been disclosed. The size of the business, the position occupied by Tony and the reasons as to why he wants some days off has been disclosed. The business is known to employee above fifty employees, this alone qualifies its employees to take FMLA leave. This is in relation to the set standards regarding who is and who is not eligible to an FMLA leave.
Question 3: Explaining whether Herman Threaten Terminating Tony's Employment, Upon Him Leaving
Although the details provided are not clear (for instance, neither has information been accorded on Tony having taken a leave in the recent past, nor on the size of the organization's personnel), yet it remains clear that Herman has no rights threatening to terminate Tony's employment, upon him leaving to take care of his father (Keel, 2009).
In the first case, the amendments that were made on June 22nd, 2010 made further clarifications on what constitutes being a son or a daughter to include both biologically and legally (adoption) motivated relationships. Therefore, for Herman to quip that it is wrong for Tony to want to take a leave to take care of his estranged father as is provided for by FMLA is to cite either malice or ignorance.
In another but important wavelength, it is imperative to note that Herman's company has over 50 employees, which is the normal threshold for employers. As a matter of fact, there are certain states which have lowered their own threshold for employers' coverage. The fact that Herman has over 50 employees makes Tony's application for FMLA leave legible for acceptance, since his leave is not going to harm the output of Herman's organization or output.
Conversely, that Tony is right in requesting for FMLA leave is a matter that is well confirmed by the fact that he is and has all along been a full time worker. This means that Tony has been working for over 1,250 hours within the year that precedes this incident. This exposes the erroneous nature of Herman's threat to sack Tony, should he attempt taking a leave to take care of his father.
At the core of Tony's being right and Herman's being wrong, is the fact that Tony's father is sick, and is scheduled for a surgery. This denotes the highest degree of care being needed and it is only Tony who can adequately provide the same.
Question 4: Those covered by the FMLA of 1993
According to Miller & Jentz (2007), the FMLA Act has a goal of promoting the economic stability and the security of the people and the nation as a whole in relation to the families' integrity. The act covers those individuals working both in the private and public sector. In the private sector, an employer with more than fifty employees and engages in commercial activities or any activity that has an impact in the economy of the country should allow the employees leave. The same act also covers all the state and local public institutions even if they do not satisfy the fifty employee mark. For an individual to be eligible to the FMLA leave, there are a number of things that the individual must satisfy. some of the criteria used for one to qualify for the FMLA leave include; an individual should be employed by an employer who is covered and currently working at a workstation that is within a radius of about seventy five miles and has more than 50 persons working in it. Secondly, the person must have worked for a minimum of twelve months. These months do not necessarily have to be consecutive. Lastly, an individual must have worked for a minimum of 1,250 hours within the last 12 months before the commencement of the FMLA leave.
Question 5: The extent to which an employer can make own determination as to the eligibility of an employee under FMLA
The period under which the employee goes for the leave can be determined by the employer or the employee. Changes are deemed to happen every now and again, this has also been impacted in the American family (Miller & Jentz, 2007). For instance, the number of single parents was increasing and similarly those families with two parents who were both working were often compromised if a child was born into the family or there was a serious outbreak of a disease. Such circumstances led to the family being forced to choose between their works or the arising matters. Such and many more examples are the ones that led to the enactment of the FMLA Act.
The employers have the right of determining the period in between the 12 month interval as to when the employee is eligible to take a FMLA leave. The calendar year is a factor that can be employed by the employers to know when the employees can be allowed to go for the leave. At the same time, there arises times when we may have a fixed 12 month interval fixed by the state can be employed by the employer in determining the eligibility of the FMLA leave in a given fiscal year. Some of the other determinants employed can include the employees' dates of anniversaries. The period of 12 months can be arrived at by counting the number of months that have elapsed since the employees took their last FMLA leave.