Employment Law Update

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New I-9 Form and FMLA Amendments

In this issue:

On March 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) issued a revised Employment Eligibility Verification Form, better known as the I-9 form. Although USCIS mandated that employers begin using the new form immediately, it also provided a 60-day grace period to allow employers time to make the switch. After May 7, 2013, however, the previous version of the I-9 form will no longer be accepted. The new form may be downloaded from the USCIS website.
The key revisions to the I–9 form include:

  • Adding data fields, including the employee’s foreign passport information (if applicable) and telephone and email addresses.
  • Adding more detail to the form’s instructions.
  • Revising the layout of the form, expanding the form from one to two pages (not including the form instructions and the List of Acceptable Documents).

Employers do not need to complete a new I–9 form for current employees for whom there is already a properly completed I–9 form on file, unless re-verification is required.
The rules pertaining to the I-9 form remain unchanged. Employers are still required to maintain an I–9 form for as long as an individual works for the employer and for the required retention period after termination of the individual’s employment, which is either three years after the date of hire or one year after the date employment ended, whichever is later.
Employers who use hard copies of the I-9 form should start using the new form immediately. Those employers who use the electronic version of the I-9 form should begin making the necessary changes to their system to accommodate the new format.


Three years ago, as part of the National Defense Authorization Act of 2010 (NDAA), Congress amended the provisions of the Family and Medical Leave Act (FMLA) that provide qualifying exigency leave and covered servicemember leave for eligible employees who are relatives of servicemembers. (November 2009). On February 6, 2013, the Department of Labor’s Wage and Hour Division published a Final Rule amending the FMLA regulations to implement the NDAA amendments and to add a few other rule changes. In addition, the DOL revised its Employee Rights and Responsibilities notice and several of its FMLA certification forms. The Final Rule became effective on March 8, 2013. A summary of the most significant changes to the regulations follows:
New FMLA Poster and Forms
The DOL revised the Employee Rights and Responsibilities notice, which is sometimes called the FMLA poster. All FMLA-covered employers are required to post the notice in the workplace and either include it in their handbook or distribute the notice to each new employee upon hiring. Several of the DOL’s FMLA forms have also been revised to reflect the changes made by the Final Rule and a new certification form to provide military caregiver leave to veterans has been added. The revised Rights and Responsibilities notice and certification forms can be found on the DOL’s website. Employers should begin using the new notice and forms that became effective March 8, 2013.
Exigency Leave for Rest and Recuperation and Funeral Leave
The amount of time an eligible employee may spend with a military member who is on rest and recuperation leave is expanded from 5 to 15 calendar days. In addition, the regulations now specifically provide that qualifying exigency leave to address issues arising from the death of a military member includes attending the member’s funeral.
Exigency Leave for Parental Care
The regulations add a new qualifying exigency leave category for parental care. Eligible employees are permitted to take leave to care for a military member’s parent who is incapable of self-care when the need for care arises because of the member’s covered active duty. Applicable care may include arranging for alternative care, providing care on an immediate basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility. A “parent” includes the military member’s biological, step, adoptive, or foster mother or father, or any other individual who stood in loco parentis to the military member when the member was under 18 years of age.
Expansion of Exigency Leave to Regular Armed Forces Members
Prior to the NDAA amendment, FMLA’s exigency leave provisions only benefited employees who were the spouse, child, or parent of a member of the National Guard or a reserve unit who was called to active duty. The NDAA extended exigency leave to include members of a regular component of the Armed Forces during deployment to a foreign country. In the case of a member of a reserve component, the NDAA clarified that exigency leave is available only during the deployment of the member with the Armed Forces to a foreign country for active duty. These changes are now included in the FMLA regulations.
Extension of Caregiver Leave to Cover Preexisting Conditions and Veterans
The NDAA amendments expanded FMLA caregiver leave to cover veterans who are undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who served with the Armed Forces (including the National Guard or Reserves) at any time during the five year period preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. The Final Rule adds veteran coverage to the regulations and provides that the period between the enactment of the NDAA on October 28, 2009 and the effective date of the Final Rule on March 8, 2013, is excluded from calculation of the five-year period to determine covered veteran status.
The NDAA also expanded the definition of “serious injury or illness” to include injuries or illnesses that existed before a service member’s active duty began and was aggravated by service in the line of duty on active duty in the Armed Forces. In the case of veterans, a serious injury or illness includes an injury or illness that was incurred in the line of duty on active duty, or which existed before the beginning of the service member’s active duty and was aggravated by service in line of duty and manifested itself before or after the member became a veteran. The Final Rule now incorporates these NDAA definitions in the FMLA regulations. It is important for employers to remember that the FMLA definitions of “serious injury or illness” for servicemembers and veterans is distinct from the definition of “serious health condition” for employees and their non-military family members.
Changes to the Caregiver Leave Certification Process
Previously, only health care providers affiliated with the Department of Defense, the Department of Veterans Affairs, or TRICARE could provide the required certification for military caregiver leave. The Final Rule expands the list of authorized health care providers to include the broad array of health care providers permitted to provide medical certification under the non-military provisions of FMLA.
What Should Employers Do?
The Final Rule updates the FMLA regulations to bring them into line with the changes already mandated by the NDAA in 2010, so the law has not changed significantly. Nevertheless, employers should be sure to use the DOL’s new FMLA Rights and Responsibilities Notice and FMLA forms that became effective March 8, 2013. Employers should also review their existing FMLA policies to determine if any changes need to be made as a result of the new regulations.

If you have questions about the I-9 process, FMLA, your FMLA policy, FMLA forms, or other employment issues contact: Chuck Bacharach at 410-576-4169 or Bob Kellner at 410-576-4239

© 2013 Gordon Feinblatt LLC. This legal bulletin is intended for informational purposes only and is not legal advice to any person, entity or firm.