In this edition three questions are addressed which are relevant to employees returning to work for tribal governments, casinos and other entities. I have benefitted from consulting with NNAHRA President Judy Wright in thinking about these questions.
Can a tribal employer discipline an employee for refusal to work generated by fears about contracting COVID-19 at work?
Can a tribal employer terminate an employee who refuses to return to work because of lack of childcare?
If an employee refuses to return to work because unemployment benefits are robust, can the tribal employer terminate the employee?
Before each of the three questions is addressed, some context is important. More specifically, the way tribal employers should think about their returning workers depends, in part, on the relationship with those workers in the present. The relationship in the present depends on what the tribal employer communicated to the workers when they were sent home.
Deciding which employees will return to work
For returning workers, the threshold question here is whether workers were furloughed, laid off or terminated. A furloughed worker typically remained in employment status during the furlough. On the other hand, a terminated worker is not an employee and there is no legal obligation to return that worker. Typically, a laid off worker is terminated, but many employers are using the term “laid off” the same as the term “furloughed worker.” Therefore, employers should closely examine what was communicated to employees when the tribal government or casino temporarily suspended certain operations.
For furloughed workers employers use the word furlough to describe their status and likely continued health care benefits. For terminated employees, employers use the word termination or discharge, ended health care benefits and sent the former employee a COBRA notice. The employer’s actions and words at the time the employees were sent home help define the worker’s status today. Depending on the worker’s status (furloughed, laid off, terminated) there may be different levels of risk depending on how the employer decides to return, or not return, certain workers to the tribal workplace.
Most tribal employers will return employees in phases. Some employees will not receive an invitation to return. When tribal employers select employees to return or not there are at least two things shaping those decisions:
1. How can the tribal employer best follow its preference protocols?
2. What business reasons are used to select Shirley over Sam?
When tribal employers select Shirley instead of Sam, the selection should be supported by a legal basis. A legal basis for selecting Shirley over Sam is Shirley’s membership in the tribe making that selection. The law refers to that choice as tribe-specific preference. Another legal basis to choose Shirley over Sam is Shirley has 9 more years of experience, she is the department’s director or myriad other legal justifications for that selection.
When tribal employers lack a business reason (legal justification) for a decision, those not selected may suggest they were rejected because of retaliation for recently complaining about harassment or discrimination based on race, religion, national origin, age, pregnancy, gender or other alleged illegal basis. In my experience, tribal employers do not tolerate retaliation or discrimination in the workplace, and by having clearly documented reasons for selecting Shirley over Sam, the tribal employer can do the right thing and limit allegations of doing the wrong thing.
With that context, each of the three questions posed above are addressed in turn.
Can a tribal employer discipline an employee for refusal to work generated by fears about contracting COVID-19 at work?
There are two answers to this question.
The first answer is during these very difficult times for tribal employers and employees, tribal employers are striving to be as flexible as they can in meeting the needs of their employees. Employees that have safety concerns with returning to the tribal workplace can be given some additional time before returning. If that is the answer for specific employees, documenting the decision and the employee’s status is a good idea. Also, before promising an extension of health care benefits indefinitely, check with your insurance broker to determine whether the extension is consistent with applicable policy language.
On the other hand, tribes are under enormous pressure to reopen their businesses and provide vital services to their members and communities. Tribes cannot operate their businesses or provide those vital services without employees performing their important roles. The second answer to this question is when a tribal employer invites an employee back to work, and the employee refuses, the employer can consider terminating the employee.
In considering that termination, what should the tribal employer consider first?
If the tribal employer follows the Family & Medical Leave Act and the employee is telling the employer that they cannot return because of one or more of the reasons which trigger FML, termination is not appropriate. Remember, the FMLA considers both physical and mental serious health conditions as one of the basis for job protected leave. Listen to your employee before dismissing FML as an option.
Next, is the tribal employer confident that it has applied a reasonable standard in developing the safety protocols needed to mitigate the risks to returning employees? The federal government, through the CDC, OSHA and others have developed guidelines for safe working environments. Whether those standards apply to tribal employers or not, using those standards as a reasonable step to create a safe working environment is consistent with best practices.
If the tribal employer, in evaluating the facts and circumstances, determines that it has created a reasonably safe work environment which meets accepted protocols, a furloughed employee’s refusal to return to work is a basis for termination.
Can a tribal employer terminate an employee who refuses to return to work because of lack of childcare?
The employee’s decision not to return may benefit the employee but not the employer. If, for example, the employee has young children at home, and in the absence of school or childcare, the employee may not be able to return to work. If the FMLA and the FFCRA apply (see below), the employer may be required to provide leave. On the other hand, if the FFCRA does not apply, the answer comes from the tribe’s laws, policies or protocols introduced in response to this unusual time.
Does the change to the FMLA apply to tribal employers?
The FFCRA is a coronavirus motivated modification to the FMLA and this question requires a couple step analysis.
Must tribal employers follow the FMLA?
There is an argument the FMLA applies to tribal employers and an argument it does not. There is not one answer to this question and therefore tribal employers answer this question with the guidance of tribal leadership, human resources professionals and lawyers. If a tribe, through a gaming compact or funding agreement, consents to application of the FMLA, the law applies, but there may, or may not, be defenses to an enforcement action brought by a private person attempting to protect their rights.
Some tribes do not directly follow the FMLA and instead meet FMLA standards through tribal law or policy or both.
Must tribal employers follow the Families First Coronavirus Response Act?
The Families First Coronavirus Response Act (FFCRA) temporally amends the FMLA. If the tribal employer follows the FMLA, or meets FMLA standards under tribal law or policy, there is consistency in following the FFCRA or meeting its standards, however like the FMLA, the FFCRA is silent on its applicability to tribal employers.
Importantly, the FFCRA does not apply to private employers with more than 500 employees. The FMLA applies to federal and state governments without regard to the number of employees employed by those sovereigns. This private versus public (government) analysis does not generate any more clarity regarding the applicability of these laws to tribal employers.
Please note, the analysis here could be influenced by the terms and conditions of federal loan programs created by the federal government in response to the pandemic. For example, if the tribal employer received federal monies intended to keep employees working, and the tribe is considering some of the forgiveness provisions in those loans, consider those rules before making a final decision on the applicability of the FFCRA.
After examining whether FFCRA applies, if the tribal employer concludes FFCRA does not apply, those protections are not extended to the employee.
If the FFCRA does not apply…
or
If it does apply and the employee has exhausted those benefits…
or
The employee does not have a claim for FML or other leave…
A tribal employer can terminate an employee who is not able to return to work because the employee does not have childcare.
If an employee refuses to return to work because unemployment benefits are robust, can the tribal employer terminate the employee?
Yes.
Before terminating the employee, check the laws and interpretive cases but generally speaking unemployment compensation is intended to provide temporary relief while work is not available. When an employer makes work available to the employee through an offer to return to the workplace, unemployment should conclude. The answer may be different if the employee cannot return to work or the employer is not offering full-time employment.