TRIBAL EMPLOYMENT NEWS Welcome to Tribal Employment News FMLA Update 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. FMLA Forms 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 Indian Community. Richard can be reached at 612-812-9673, [email protected] and Post Office Box 47068, Plymouth, Minnesota 55447. 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.
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