Question 1
The ADA creates a protected class called “qualified individuals with disabilities.” Discuss what this phrase means and how one qualifies for protection.
Many were times that people with disabilities were often discriminated and overlooked in employment opportunities, and those who were lucky to get employed suffered under the weight of workplace discrimination. This led to enactment of legislations such as the Americans with Disabilities Act, which is commonly referred as ADA. The ADA is a piece of legislation that came into force on July 26, 1992. According to Veres & Sims (1995) the American with Disabilities Act was designed to prohibit any form of discrimination against individuals with any physical or mental disability. This Federal law outlaws any form of discrimination or prejudice that persons with disability may be subjected to in private or public places. Blanck (2000) observes that ADA is akin to civil rights laws that protect individuals against prejudice of race, religion or ethnic backgrounds. Therefore, the American with Disabilities Act ensures that persons with disabilities enjoy equal opportunities in jobs, government services, public participations and other spheres of life.
The provisions of ADA created protected class of American citizens called “qualified individuals with disabilities.” Veres & Sims (1995) explain that this class of citizens constitutes disabled individuals who are willing and qualified to work despite their impairment, either physical or mental that has significantly limited their major life activities such as speaking, seeing, hearing or engaging in manual tasks. In order to give disabled individuals an equal opportunity in the workplace, the ADA Act stipulates that an employer should make adjustments in the employment practices to provide disabled individuals equal opportunities. These adjustments, under provisions of ADA are termed as reasonable accommodation and are changes or modifications done to a job or work environment to ensure that people with disabilities work successfully. Failure by an employer to provide reasonable accommodation to individuals with disabilities, Veres & Sims (1995) assert that qualified individuals with disabilities have a right under ADA to seek adjustments for employment practices like hiring process and on the job.
Question 2:
Compare and contrast the difference between FMLA interference and FMLA retaliation. Additionally, articulate the requirements for an employee to be covered under FMLA. Lastly, if an employer desires to provide FMLA protection for employees, but the employer does not have the requisite number of employees to qualify under the statute, can the employer nevertheless decide to provide FMLA protection to its workforce? Why, or why not. Explain in full.
The Family and Medical Leave Act (FMLA) is a labor law that came into force on August 5, 1993 after it was signed into law by the then President Bill Clinton (Aitchison, 2003). The law requires that employers to grant their employees 12 weeks of unpaid, job-protected leave on grounds such as caring for a sick family member, medical reasons or to care for a newborn child or adopted child. Besides unpaid leave, an employee who is on leave under FMLA is entitled to carry-over of health benefits and other benefits during the leave and resumption of his job position on return from the leave. For an employee to be eligible for FMLA he must be employed by a company with at least 50 employees within a radius of at least 75 miles, he must have worked for the company for at least one year or having worked for 1250 hours within the past 12 months (Bruce, 2011; Walsh, 2009). On the other hand, an employer cannot provide FMLA protection to his employees if he does not have the requisite number of employees, which is at least 50 employees; however, some states have lowered this threshold. Walsh (2009) continues to observe that under FMLA, an employee can take intermittent leave as long as it amounts to 12 weeks.
According to the Family and Medical Leave Act an employee should not be subjected to any form of victimization, interference, discrimination or retaliation for having exercised his rights under the act, however, in some instances, employers victimize or discriminate against employees for exercising their rights under FMLA Act. The provisions of FMLA addresses two forms of legal redress that employees can use to protect their rights under FMLA and include FMLA retaliation or FMLA interference. The FMLA interference is a provision that outlaws employers from interfering or restraining employees enjoy benefits or entitlements under FMLA. In this case, an employee ought to show that he was lawfully entitled to FMLA entitlements but was denied. FMLA retaliation, on the other hand, is a provision that makes it unlawful for an employee to discriminate or terminate employment of an employee who opposes practices that contravene FMLA Act (Aitchison, 2003).
References
Aitchison, W. (2003). The FMLA: Understanding the Family and Medical Leave Act. New York: LRIS Publications.
Blanck, P. D. (2000). Employment, disability, and the Americans with Disabilities Act: issues in Law, Public Policy Research. New York: Northwestern University Press.
Bruce, S. (2011). Family and Medical Leave Act. Retrieved from, https://hrdailyadvisor.blr.com/category/fmla/
Veres, J. G. & Sims, R. R. (1995). Human resource management and Americans with Disabilities Act. New Jersey: Greenwood Publishing Group
Walsh, D. J. (2009). Employment law for human resource practice. Ohio: Cengage Learning
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