TRIBAL EMPLOYMENT NEWS Welcome to Tribal
TRIBAL EMPLOYMENT NEWS
Welcome to Tribal Employment News
Whether the Family & Medical Leave Act applies to tribal employers is an open question. In response to that open
question, there is an argument that the FMLA applies to tribal employers and an argument that it does not apply. If
you apply the FMLA or if you meet its standards, here is an update regarding a couple FMLA issues.
Definition of Family
The applicable regulations were updated to reflect the United States Supreme Court’s Windsor decision wherein the
Court held that the FMLA’s definition of family includes an eligible employee’s same sex spouse. For example,
employees who suffer a serious health condition may be eligible to take job protected leave under the
FMLA. Additionally, an employee may also take leave to care for employee's parent, spouse or child who suffers a
serious health condition. Spouse was defined as an opposite sex spouse but now spouse is defined to include same
sex and opposite sex spouses. Check your policies to determine whether this change is reflected and make sure
your supervisors are aware of the change.
While you are updating the definition of family under the FMLA, or your policy which meets its standards, evaluate
whether your definition of family in your bereavement, nepotism and other leave policies reflect the values of your
tribe. Consider updating those policies as well.
Are you using the correct FMLA forms? The forms you are using to provide notice or collect medical information
under the FMLA will expire at the end of the month. Take a look at the form and see where it declares its own
expiration. Three years ago when this happened, there was a gap between the expiration of the forms and the
Department of Labor’s issuance of new forms. The best advice is to continue using the expired forms until Labor
issues new forms. Those forms which are about to expire can be found at:
Certification Employee Serious Health Condition http://www.dol.gov/whd/forms/WH-380-E.pdf
Certification Employee Family SHC http://www.dol.gov/whd/forms/WH-380-F.pdf
Rights & Responsibilities Notice http://www.dol.gov/whd/forms/WH-381.pdf
Designation Notice http://www.dol.gov/whd/forms/WH-382.pdf
Certification Military Preparation http://www.dol.gov/whd/forms/WH-384.pdf
Certification for Service member http://www.dol.gov/whd/forms/WH-385.pdf
Certification Veteran http://www.dol.gov/whd/forms/wh385V.pdf
Calculating Leave Left in the FMLA Bucket
For most types of leave under the FMLA, eligible employees are entitled to 12 workweeks of leave. If an employee
takes a block of leave, employers use workweeks to determine what remains in the employee’s FMLA bucket. If an
employee takes a block of 4 weeks off for a qualifying reason, the employee has 8 workweeks remaining. This is
pretty straight forward.
On the other hand, what if the employee does not take leave in a single block (gone for four weeks) but instead
takes intermittent leave (leave followed by work followed by leave), does the math change? Yes. In this instance
employers should calculate the number of hours which are equal to the number of remaining
workweeks. Employers convert workweeks into hours by multiplying the weeks remaining in the FMLA bucket by
the typical hours worked by that employee in a workweek. An employee who works 40 hours a week has 320 hours
left in the FMLA bucket (40 times 8 workweeks), but an employee who regularly works 32 hours in a workweek only
has 256 hours of leave remaining in the leave bucket (32 times 8 workweeks). Remember FMLA benefits are
extended to some part-time workers.
Recommendation: Check your policies to determine whether family is properly defined. Evaluate whether you are
using the most recent forms and continue to use them until the official forms are updated and make sure your math
is correct when calculating the leave available to individual employees utilizing the FMLA.
I am interested in assisting you with FMLA training, policy review and compliance. Please call me at 612812-9673 or write at [email protected].
Tribal Employment News is a product of Richard McGee an attorney with the Law Office of Richard G. McGee,
LLC. Richard is the author of A Guide to Tribal Employment (Xlibris Publishing 2008) and he is a frequent speaker
on employment issues, works with tribes on employment related matters, investigates employee misconduct,
represents tribes in administrative and court proceedings and was the former in-house counsel at the Prairie Island
Richard can be reached at 612-812-9673, [email protected] and Post Office Box 47068, Plymouth,
Information published in Tribal Employment News is not legal advice. I strongly recommend that you seek legal
advice from a lawyer before acting on any legal matter and do not rely on the information published or referenced
herein. There is not an attorney-client relationship between Richard McGee, his firm and you unless a written
agreement memorializes an attorney-client relationship.
Copyright (C) 2011, Richard McGee, All rights reserved.