Georgia Employer Committee
Legislative Update (03/13/2009)
Immigration Compliance in 2009-The Theme is Change
New I-9 Form. E-Verify and New H-1B Petition Filing Period Top The List
2009 clearly appears to be a year of change, and employers will need to be especially mindful of immigration compliance changes, including a new I-9 form and the new regulation requiring federal contractors to use E-Verify (which are summarized below). In addition, the filing deadline for new H-1B petitions is approaching.
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New I-9 Form
Employers will be required to begin using a new Employment eligibility Verification Form (Form I-9) on February 2, 2009. The new Form I-9 will be the only version of the form employers can use to satisfy the Employment Eligibility Verification process. The new form and instructions can be found at www.uscis.gov/i-9.
Federal Contractor E-Verify
The Department of Homeland Security (DHS) recently announced that the implementation of the regulation requiring certain federal contractors to use E-Verify will be postponed from January 15 to February 20, 2009. E-Verify is the Internet-based system operated by DHS in cooperation with the Social Security Administration that allows participating employers to electronically verify the employment authorization of newly-hired employees. The final regulation requires certain federal contractors to use E-Verify for new hires and to reverify existing employees working on covered contracts.
New H-1B Petitions
The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on March 31, 2009. Persons currently employed as F-1 students or J-1 trainees and persons outside the U.S. commonly require new, cap-subject H-1Bs. March 31 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009. Due to the annual numerical limitations, it is important that employers file all new H-1B petitions on March 31.
Family and Medical Leave Act Revisions
(as of 02/03/2009)
On November 17, 2008, the first revision to the Family and Medical Leave Act regulations since enactment of the 1993 law was released by the U. S. Department of Labor (DOL). As expected, the new rule implements the new Military Leave law which provides job-protected leave rights to employees who care for covered service members with a serious injury or illness, or who face “qualifying exigencies” because a covered military member is on active duty or has been notified of an impending call or order to active duty. The new rule also makes several changes to existing FMLA regulations, including new notice requirements (including a new FMLA poster), medical certifications, and the definition of serious health condition and continuing treatment was clarified.
What are the new FMLA changes?
The new FMLA rule implements the requirements to expand FMLA protections for family members caring for a covered service member with a serious illness or injury incurred in the line of active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.
The new military leave law also allows families of National Guard and Reserve personnel on active duty to take 12 weeks of FMLA job-protected leave to manage their affairs- “qualifying exigencies.” The new rule defines “qualifying exigencies” as (1) short–notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.
Other significant changes brought about by the final rule include:
Serious Health Condition. While the rule retains the six individual definitions of serious health conditions, it adds guidance on some regulatory matters. First, it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Second it defines "periodic" conditions as at least two visits to a health care provider per year.
Medical Certification. Employers have five business days (up to two days) in which to request medical certification after recieving notice of an employee’s needs for FMLA leave. Employees are required to provide medical certification within 15 days after the leave is requested in all cases of FMLA leave, including foreseeable leave. The new rule provides two sample medical certification forms employers may use to verify an employees FMLA leave request.
Employer Notice Requirements. Notice requirements have been consolidated into one comprehensive one-stop section in the new rule. Employers are required to provide employees with four different types of notices: general notices, eligibility notices, rights and responsibilities notices, and designation notices.
When will the new FMLA poster be released?
It is still uncertain as to when the new FMLA poster will be released by the U.S. DOL.
When do the new FMLA regulations take effect?
The final rule will take effect on January 16, 2009.
Will the new rules require me to update my FMLA forms?
Yes, the new rules contained several new forms including an eligibility notice that employers must provide to employees indicating eligibility or ineligibility to take FMLA leave, generally within five business days after the employee either requests leave or the employer learns that the employee’s leave may be FMLA-qualifying.
Will my state FMLA poster be affected?
Typically, state FMLA posters only address state related FMLA laws, so most state postings will not be affected by the new federal law.
As an employer, what should I do to comply with the FMLA requirements now that the law has changed?
You should inform your employees about the recent changes, including the posting of an updated FMLA poster as soon as they become available. Keep checking the U.S. DOL website for updated FMLA notices. Also, you should revise your current FMLA policies and procedures, and update or revise FMLA forms to reflect the recent changes.
