Whether the Family & Medical Leave Act applies to tribes is an open question with an argument that it applies and an argument it does not apply.  Many tribal employers provide job protected leave which is similar to or the same as the FMLA.  The federal Department of Labor enforces the FMLA and its work includes the publication of forms frequently used by employers to comply with the FMLA.  Those forms just changed and I suggest reviewing the new forms on the DOL’s website.  Credit to Jeff Nowak at Littler for his excellent blog FMLA Insights for much of the content of this article.

Notice of Eligibility

There are some improvements in the form which is longer than the form it replaced.  Please note that the form incorporates a misleading statement which asserts that the 15 day period to return certification runs from the time the employer provides the medical certification but the regulation contradicts that statement measuring the 15 days from the day the employee receives the certification.  See, 29 CFR 825.313(b).

Designation Notice

Remember in 2019 the DOL issued a guidance letter requiring employers to designate leave as FML job protected leave when the leave is covered under the FMLA even over an objection from the employee.  The new form includes this requirement.

There is a change which addresses the process for an employee to cure an incomplete or insufficient certification.

Certification

There is clarity in the new form that an employer should not request certification for FMLA leave to bond with a healthy newborn or a child placed for adoption or foster care.

Forms

Some tribes use the DOL forms and it serves them well.  Some tribes modify the forms to remove any reference to the DOL and to align the forms to any differences between the FMLA and the tribe’s version of the FMLA.

Drafting Tribal Employment Laws & Handbooks

I continue to be grateful for your kind words regarding my new book Drafting Tribal Employment Laws & Handbooks.  Thank you.