The Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS) updated forms on March 8, 2013. DOL issued updated Family Medical Leave Act’s (FMLA) regulations, certification forms and a new poster. USCIS revised their I-9 form which establishes an individual’s right to work in the United States.
FMLA has been around for twenty years. Its most recent amendment was in October 2009 when the National Defense Authorization Act (NDAA) expanded the military leaves which were less than two years old. Two types of military leaves were added in January, 2009; qualifying exigency and military caregiver leave.
Initially, the exigency leave was to assist families of National Guard or Reserves to prepare for deployment on short notice. The NDAA expanded this to include all members of the Armed Forces. The Military Caregiver Leave was also expanded to include veterans for up to five years after being honorably discharged. Serious health condition expanded to include pre-existing conditions aggravated by active duty.
The new poster and forms are a result of DOL’s Final Rule issued February 6, 2013. It includes these recent amendments as well as a few other changes. Employers who are covered by FMLA must immediately replace the FMLA poster with the new one and use the updated forms.
The Genetic Information Nondiscrimination Act of 2008 (GINA) basically prohibits employers and others from requesting genetic information. It is best practice to include safe harbor language when having employees complete FMLA medical certifications or other related documents. This language was not included on the new forms. Here is an example:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of individuals or their family members. To comply with this law, we are asking you not to provide any genetic information when responding to this request for medical information. “Genetic information” that should not be disclosed pursuant to GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, genetic information of a fetus carried by an individual or an individual’s family member, and genetic information of an embryo lawfully held by an individual or family member receiving assistive reproductive services.
All public agencies, local education agencies (schools); and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers are required to comply with FMLA.
Unlike FMLA which covers specific employers, all employers are required to complete an I-9 on each new hire within the first three days of employment. The form is used to verify the identity and eligibility for employment in the United States. Completing the form on each new hire provides a good faith defense to a charge of hiring an unauthorized worker. The updated form with the revision date of “(Rev.03/08/13)N” may be used immediately and must be used beginning May 7, 2013 for all new hires and re-verifications.
The new form added data fields, including foreign passport information and voluntary fields, such as email address and telephone number. Employers do not need to, nor should they complete a new form for existing employees.
It’s a good idea to start using the new forms immediately. Though the I-9 appears to be a simple form, employers should review the new Employer Handbook, take the form seriously and complete it properly and in a timely manner.
The Occupational Safety and Health Administration (OSHA) has been strengthening whistleblowing enforcement over the past several years. The Office of Whistleblower Protection Program now reports to the Department of Labors Office of the Assistant Secretary which increases its status and priority. In addition, investigator training , policies and processes have improved.
Employers can expect an increase in investigations, especially in manufacturing. Employers should review their health and safety programs, train supervisors to take handle and document employee concerns properly.