If employees are on an inactive leave status but are reinstated to an active work status, should you consider them terminated and do you need to complete a new Form I-9?
Employers must complete a new Form I-9 when a “hire” takes place. Under DHS regulations, a hire will not be considered to have taken place if the employee is continuing in his or her employment and has a reasonable expectation of employment at all times. Eight situations are listed in the regulations as events that constitute “continuing employment.” These eight situations can arise from the following two employment events:
- The individual takes approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer.
- The individual is temporarily laid off for lack of work.
To determine whether an individual continuing in his or employment had a reasonable expectation of employment at all times, several factors should be considered, including, but not limited to:
- The individual was employed on a regular and substantial basis. A determination of a regular and substantial basis is established by a comparison of other workers who are similarly employed by the employer.
- The individual complied with the employer’s established and published policy regarding his or her absence.
- The employer’s past history of recalling absent employees for employment indicates a likelihood that the individual in question will resume employment with the employer within a reasonable time in the future.
- The former position held by the individual has not been taken permanently by another worker.
- The individual has not sought or obtained benefits during his or her absence from employment with the employer that are inconsistent with an expectation of resuming employment within a reasonable time in the future.
- The financial condition of the employer indicates the ability of the employer to permit the individual in question to resume employment within a reasonable time in the future.
- The oral and/or written communication between employer, the employer’s supervisory employees and the individual indicates that it is reasonably likely that the individual will resume employment within a reasonable time in the future.
Contact your human resources personnel to determine why the employee went on inactive leave status and whether that inactive period constitutes a break in employment, considering the above factors.
If you determine that your employee has been terminated and is now ‘rehired’, you may either have the employee complete a new Form I-9, or you may use Section 3 of the employee’s existing Form I-9 to update their status (provided that the “rehire” occurs within three years from the date of execution of the original Form I-9). See Handbook for Employers: Instructions for Completing Form I-9 (M-274).
If you determine that your employee has remained in continuous employment with a reasonable expectation of employment at all times, these employees will be considered existing employees for purposes of complying with Form I-9 and E-Verify requirements for Federal contractors that have a contract that contains the FAR E-Verify clause. For information on verifying existing employees, see the Supplemental Guide for Federal contractors.
If you “rehire” the employee based on the above criteria, they must be treated as a new hire and submitted for verification in E-Verify. If there was not a break in employment, verification is not required nor permitted.
