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Most tribes understand how important the enactment of their own laws and regulations is: not only does it provide a framework for dispute resolution and enforcement that is unique to a tribe’s culture and practice, but it is also an exercise of self-governance and self-determination.  In the employment context, the COVID-19 crisis has only highlighted the importance of tribal laws and regulations governing paid leave, medical testing, and medical exemption policies.

In the employment and labor law world, tribes generally look to federal and tribal law for guidance.  The application of federal laws to tribal employers is varied and complex1.  While some laws, such as Title VII of the Civil Rights Act 2 or Title I of the Americans with Disabilities Act 3, specifically exclude tribal employers from their reach, others are silent on the issue.  In fact, most federal employment laws are silent in regard to their application to tribes: this includes many laws that currently house COVID-19 related legislation, including the Occupational Health and Safety Act, the Fair Labor Standards Act, and the Family and Medical Leave Act. Courts across the country are split on whether federal laws that do not expressly apply to tribes still in fact govern tribal conduct: in other words, tribes in some parts of the country may presume that otherwise silent federal laws apply to them, while those in other parts of the country may not. 4

Jennifer Saeckl rosetteJennifer Saeckl, Rosette LLPThe application of federal laws is therefore complicated. Often, tribal employers choose to voluntarily comply with these laws in order to minimize conflict and avoid confusion with employees. Better still, if a tribe has laws or regulations in place that are consistent with federal law, the question of federal law compliance is less pertinent.  Moreover, with a complete slate of employment laws and regulations in place, a tribe may cover gaps where otherwise inapplicable state law typically operates and the tribe can tailor its law to fit its unique situation. 

This issue has become magnified under the lens of COVID-19.  Many tribes are focused on providing paid leave to sick or exposed employees, while federal law on the matter is silent as to its application to tribes.  Similarly, the Title 1 of the Americans with Disabilities Act and Title VII of the Civil Rights Act are relevant to COVID-19 testing and vaccination policies, however they both expressly exclude tribes from their application.  Tribes are therefore in the unique position to build relevant legislation governing these innovative issues and providing for employees that work in their jurisdiction.  

Thus, now might be the right time for tribes and their tribally-owned businesses to consult with their legal counsel and consider reviewing and revising their employment laws and policies to ensure they:

  1. Address the current concerns of the COVID-19 pandemic and are flexible enough to adapt to future obstacles that affect the workplace;
  2. Reflect the realities of the tribal workplace and offer employee protections and benefits that employees may expect; and
  3. Account for the unique position a tribal employer is in and are consistent with tribal laws, customs, and practices.

Without relevant tribal employment laws, tribes put themselves at risk of employee disputes and potentially subject themselves to otherwise inapplicable laws.  A set of tailored, tribe-specific laws and policies governing the workplace can help tribes deal with unexpected and expected situations, from pandemics to paid time off.   Your legal counsel can help you draft, enact, and implement these laws.


 

1 State laws typically do not apply, although there may be exceptions to this based on a business’s structure, industry, or contracts.  Some state laws such as those governing unemployment benefits may also be relevant to employees located in those states.

 2 42 U.S.C. § 2000e(b).

 3 42 U.S.C. § 12111(5)(B)(i).

4 Donovan v. Coeur D’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir 1985); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir 1996); Donovan v. Navajo Forest Prods. Inds., 692 F.2d 709 (10th Cir 1982); EEOC v. Fond du Lac Heavy Equipment and Construction Co., 986 F.2d 246 (8th Cir 1993); Reich v. Great Lakes Indian Fish & Wildlife Commission, 4 F.3d 490 (7th Cir 1993); Menominee Tribal Enters. v. Solis, 601 F.3d 669 (7th Cir 2010).

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