The Family and Medical Leave Act is a difficult law to apply for any employer and the complexity increases for tribal employers.  There is more complexity for tribal employers for at least two reasons.  First, whether the FMLA applies to tribal employers is an open question. There is an argument the FMLA applies and there is an argument the FMLA does not apply.  Second the definition of family in the FMLA is more restrictive than the definition of family frequently used by tribal employers.  Reconciling the differences in these definitions can create confusion in practice.  This week’s newsletter tackles the family definition question and a couple more FMLA issues.

How does the FMLA define family and is that definition different from the definition used by tribal employers?

When defining the term family in constructing the FMLA, Congress did not distinguish between your polite and normal relatives and those relatives who you would rather not hang around.  Instead, Congress defined family to include part of the family tree without an assessment of their personality traits.

Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  For now that definition does not include same sex unions but given recent Supreme Court activity, this restriction may disappear.

Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter. This term does not include parents “in law.”  Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

For purposes of FMLA leave taken for birth or adoption, or to care for a family member with a serious health condition, son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.

A member of the armed services who suffers a serious health condition or illness may generate a leave request from one of your employees.  Family includes spouse, parent and child and it extends to next of kin. “Next of kin of a covered servicemember” means the nearest blood relative other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority: Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered service member’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered service member’s only next of kin.

For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc. The employer is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose.

If an employer has a reasonable belief that an employee is dishonest regarding the necessity of leave, can the employer terminate the employee?

In a case involving a nurse injured at work, her Facebook postings undermined her job protected leave under the FMLA.  The nurse was injured at the hospital where she worked and was treated for her injury by hospital staff.  Her employer approved three months of FMLA protected leave and while out on leave she took a prepaid vacation to Mexico.  Her physician declared that her vacation would not be as physically demanding as her duties for the hospital which cleared the way for the vacation.  During the vacation (and FMLA leave) she posted numerous pictures showing her riding a motorcycle, drinking beer, holding her grandchildren and other vacation activities. When the employee’s coworkers complained about the apparent contradiction between an injured worker out on FMLA protected leave while at the same time frolicking in the Mexican sun, the employee’s supervisor confronted her about the behavior.  According to the Court’s findings, the employee was dishonest in responding to her supervisor by declaring that she was using a wheelchair in Mexico to accommodate her serious health condition.  The Court relied on FMLA regulations (29 CFR 825.216(a)) which provides:

“An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”

In other words, if an employer has a legitimate reason unrelated to the exercise of FMLA rights for terminating the employee, the termination does not violate the law.  This argument must be carefully scrutinized by the employer with the assistance of human resources and legal counsel before an employer acted on this argument.  The hospital’s policy against dishonesty was the basis for termination which the Court supported.

Does an employee have the right to substitute paid leave for unpaid leave under the FMLA?

FMLA provides unpaid job protected leave to eligible employees but if the employee has accumulated sick, vacation, PTO or other discretionary wage substitute, can the employee use those monies to receive a pay check while absent under the protection of FMLA? The answer is up to you as the employer.

FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The term “substitute” means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer’s applicable paid leave policy during the period of otherwise unpaid FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave. Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.

Recommendation:  The FMLA is defined by law, regulation and judicial decisions. Staying ahead of all those rules is a necessary challenge to avoid potential liability and to fairly administer this benefit for employees.