FMLA & I-9

Whatever · February 2003

I have an ee who has applied for FMLA (she is 8 mos pregnant). However, her work papers expire today and she says she hasn't had a chance to renew them yet but will in the near future. Obviously, she cannot work (both because of disability and lack of work papers). However, is she entitled to FMLA?

sandra_d · February 2003

I don't know what the "right" answer is, but I remember a year or two ago, undocumented (and never documented) workers won a lawsuit alleging a number of things including wage and hour violations; the court ordered the employer to pay back wages and payment for other alleged wrong-doings to this group. In your case, it would seem to make sense that since the employee would be on FMLA and not actively working, give her the time off, and require that she present updated papers before returning to work.

Don D · February 2003

The flip side of that suggestion is that if you are self insured, your company will continue to suffer the medical expenses of an individual who is legally unauthorized to work in the United States, not to mention holding the position open for the return of a worker who is not entitled to be one. A good one for your labor attorney.

Eliant · February 2003

I agree with Don in one part, go over this situation with your labor law attorney. But, as for IF self insured? incurring additioanl medical expenses. Who pays for women with no insurance having a baby? wether undocumented or not to work in this country (at least in California) she will be entitled to receive medical services (so who pays - TAX PAYERS...)We are assuming to many things. I say, give her the benefit of the doubt, give her the FMLA with the requirement that she must provide eligibility to return to work. It is the safe and the right thing to do.

Eliant

vmiller MO · February 2003

It appears that there are really two different questions here. First, is the individual entitled to FMLA leave. Since the women has been working for the company and apparently is authorized to work in the US (proper I-9 documentation), the woman has a statutory right to FMLA if she meets the other requirements.

However, the statute specifically states that "Nothing in this section [Restoration fo Position] shall be construed to entitle any employee to...(B) any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave."

The regulations at 29 CFR section 825.216(a) state that "an employee has no greater right to reinstatement. . .than if the employee had been continuously employed durng the FMLA leave period."

These two statements lead into the next issue: whether the company has reinstate her at the end of her leave if she does not prove that she is authorized to work because her I-9 documentation is expiring.

If the employee had not taken FMLA leave and the employee's I-9 documentation had expired, the company would have the right and the obligation to require the employee to provide documentation that the employee is authorized to work. If the employee failed to do so, then the company could not legally continue to employ the employee. Since the statute and the regulations clearly state that an employee on FMLA leave does not get any right or benefit to which the employee would not have ben entitled if the employee had not taken FMLA leave, then it logically follows that the employee must still meet the legal requirements to be able to work. Therefore, it would follow that the company can and I would take the position has a legal obligation to insist that the employee provide the approprate documentation that she is authorized to work. I

From a practical point of view, I suggest that you tell the employee that her I-9 documentation is expiring and that she needs to provide new documentatioan. I would tell her before she leaves for FMLA leave and if she is already on FMLA leave, I would send the information to her home. If she has not provided the information prior to her return from FMLA leave, I would inform her of her need to do so. Since I believe that litigation over FMLA issues is not a productive expenditure of money, I would reinstate the employee even if she had not provided the necessary documentation and inform her on the day of her reinstatement, preferrably in writing, that she has a specific time period in which to provide the documentation or the company cannot legally allow her to continue to work.

arodriguez · March 2003

Wouldn't this also depend on what type of "work authorization" we are talking about? Does this ee have an actual "Work Authorization" card issued by INS or is it a "Permanent Resident" or "Resident Alien" card?

If this ee has a Permanet Resident or Resident Alien card, you do not have to reverify employment eligibility, as it is the card itself that expires, not the authorization.

Don D · March 2003

You are correct. So the advice changes from 'contact a labor attorney' to 'contact a labor attorney with specific immigration experience'. Extensions are often automatic upon request in the H1b situations. Don't deal with an attorney who tells you he isn't sure but let him research it. Immigration specific labor attorneys will have the answer on the tip of their tongues.

FMLA & I-9

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