DHS Ends Temporary Policy for Form I-9 Identity Documents

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The Department of Homeland Security (DHS) has ended its temporary Form I-9 policy that allows employers to accept List B documents that expired on or after March 1, 2020.

DHS adopted the temporary policy in response to the difficulty of renewing documents during COVID. Since then, document-issuing authorities have reopened or provided alternatives to in-person renewals. Employers must now return to only accepting unexpired List B documents.

Action Item

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, you need to update their Form I-9 by July 31, 2022, as follows:

  • If the employee is still employed, they must present an unexpired document from either List A or List B. If presenting a List B document, it could be a renewed version of the document previously provided, or a different List B document. You should enter the document title, issuing authority, document number, and expiration date in the “Additional Information” field of Section 2, and initial and date the change. USCIS provides an example of how to do this here. 
  • If the employee is no longer employed, no action is needed.

If the List B document was auto-extended by the issuing authority so that it was technically unexpired when it was presented, no action is needed.

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Question: Should we cancel our annual holiday party again this year?

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Answer from Kyle, PHR:

Ultimately, that’s your decision. Some companies are forgoing an in-person holiday party again this year, while others feel like it’s safe enough to celebrate in person. Unfortunately, COVID cases and hospitalizations due to the virus are rising again in many places across the country. Also, the CDC continues to recommend that anyone who isn’t fully vaccinated, as well as fully vaccinated people in areas with substantial to high transmission, wear masks in public indoor spaces.

If you decide to host a party this year, here are some measures you may want to consider:

  1. Look for outdoor spaces or well-ventilated indoor venues with enough room for people to spread out.
  2. Require employees to be vaccinated or tested before attending the party. Pay for testing if you require it.
  3. Require anyone who is under the weather (for any reason) to stay home. If there are raffles or gifts at the party, ensure those who stay home for their own safety or the safety of others are included.
  4. Make sure employees know that the holiday party is completely voluntary. No work or company business should be conducted during this time. Employees who are uncomfortable attending should not be pressured in any way to attend.
  5. Host a virtual party instead or as an alternative for those who can’t or don’t want to attend in person. You could provide gift cards to local eateries or food delivery services, organize a home decorating or ugly sweater contest, and facilitate interactive games.

You can read the CDC’s guidance on holiday celebrations here.

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Biden’s Announcement About Mandatory Vaccinations for Private Employers

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If you have fewer than 100 employees, no federal contracts, and no healthcare workers, these new federal requirements do NOT apply to you.

We are actively monitoring for the details of President Biden’s COVID action plan. The aspects of this new plan that affect HR and how you run your business will come from DOL rules called Emergency Temporary Standards (ETS), written by the Occupational Safety and Health Administration (OSHA); executive orders (EOs) from the President; and (for healthcare workers) regulations from the Centers for Medicare and Medicaid Services (CMS). When relevant information becomes available, we will update you via an eAlert and provide information on the HR Support Center. In the meantime, here is what we know:

Employers with 100 or More Employees

Employers that have 100 or more employees will be required to:

  1. Mandate their employees get vaccinated against COVID or submit to weekly testing; and
  2. Provide employees with paid time off to get vaccinated and recover if they experience side effects from the vaccine.

It’s possible that the weekly testing option will be reserved only for those who request testing as an accommodation to mandatory vaccination because of a sincerely held religious belief, disability, or pregnancy. We expect the new ETS to address this.

We don’t yet know if there will be a way for employers to get reimbursed for costs associated with compliance.

Federal Contractors

Federal contractors will be required to mandate vaccination among their employees.

Healthcare Workers

Workers in most healthcare settings will be required to be vaccinated.

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National Disability Employment Awareness Month

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October is National Disability Employment Awareness Month (NDEAM). Declared in 1988 by the United States Congress (though its roots go back to 1945 when Congress urged employment for WWII service members with disabilities), NDEAM is a good occasion for us to celebrate the contributions of people with disabilities to workplaces and the economy. We also recommend taking this time to better understand employer obligations under the Americans with Disabilities Act and consider how to be more inclusive and accommodating than what the law strictly requires. 

The DOL’s Office of Disability Employment Policy is commemorating NDEAM this year with the theme “America’s Recovery: Powered by Inclusion.” This theme “reflects the importance of ensuring that people with disabilities have full access to employment and community involvement during the national recovery from the COVID-19 pandemic.”

We’re glad to see this.

People with disabilities (1 in 4 adults in the United States) are at greater risk of poor outcomes from COVID-19. At the start of the pandemic, workers with disabilities lost their jobs at a higher rate than the general population. As the pandemic continued, those with intellectual disabilities were six times more likely to die from the virus than other members of the population. Helping people with disabilities stay safe and succeed as the pandemic continues will be essential to a full recovery, and employers can play a huge role in that. 

Supporting employees with disabilities may also be vital to the success of individual employers—now and after the recovery. According to a CNBC poll, nearly 80% of workers say that they want to work for a company that values diversity, equity, and inclusion. With roughly half of small businesses struggling to fill roles, competition for talent is fierce. Employers who don’t appear to believe that it’s important to include and support employees with disabilities put themselves at a huge disadvantage. 

What can you do to help?

First, make doubly sure you understand your compliance obligations related to applicants and employees with disabilities. We have lots of resources for you on the HR Support Center. If you search disability in the search bar, you’ll find articles, forms, guides, law summaries, letters, policies, Q&As, videos, and more.

Second, as the pandemic continues, do what you can to accommodate employees with disabilities who may be at greater risk of severe illness or death. Accommodations to consider may include remote work for those who can do their jobs from home and extra PPE (e.g., N95 masks, face shields, gloves) for those who need or want to work onsite. Other possible accommodations are different shifts, job changes to reduce physical proximity or public interaction, extra breaks (for handwashing or mental health), permission to keep a minifridge or other personal storage device at one’s workstation, and extra cleaning supplies. All in all, when an employee requests an accommodation, do what you can to try to make it work. Focus on what you can do, not what you can’t.

Third, stress to everyone that respect and empathy are nonnegotiable values. Employees who need extra support so they can do their jobs well aren’t going to ask for it if they believe their concerns will be dismissed or that they’ll be ridiculed or looked down on by coworkers. If they don’t feel like they can ask for an accommodation, they’re more likely to look for a job elsewhere. And if they stay, it’s unlikely that they will be as productive or successful if they feel unsafe and stressed out. That’s a lose-lose. But it’s a win-win when employees feel safe asking for accommodations and those accommodations enable them to succeed.

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Three Questions About COVID Vaccinations

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Can we ask for proof of vaccination? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?

Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary.*

When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The Americans with Disabilities Act (ADA) will govern the collection and storage of this information.

The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, has stated that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow-up questions about why the employee is not vaccinated. Asking a yes or no question, or requesting to see the employee’s vaccination card, does not violate any federal laws or require proof that the inquiry is job-related.
 
Finally, just because employees think that something is or should be private or confidential doesn’t mean they can’t be required to share it with their employer. Social Security numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required for work. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.

*It appears that some governors may attempt to prevent certain entities from requiring “immunity passports” (e.g., proof of vaccination) through an executive order (EO), though as of July 31, none of the EOs already issued appear to apply to private businesses and their employees. Also note that if there is a law in place that prevents treating vaccinated and unvaccinated employees differently (like in Montana), you may be able to ask, but not take any action based on the response.

Should we keep a record of who is vaccinated or make copies of vaccination cards? If we do, how long should we keep that information?

If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do this is up to you, unless state or local law has imposed specific recordkeeping requirements. You may want to keep something simple like a spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to make a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file. Per OSHA, these records should be kept for 30 years.

If we keep a record of who is vaccinated, can we share it with managers who will be required to enforce policies based on that information, such as masking and social distancing?

Yes. We recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly. Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.

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The American Rescue Plan Act

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The American Rescue Plan Act (ARPA), which is the latest bill to address the ongoing economic impacts of COVID-19, has been signed into law. Most aspects of the law do not directly affect the HR function, but two of those that do—optional extension of sick and family leave and establishment of COBRA subsidies—are outlined below.

OPTIONAL EXTENSION OF SICK AND FAMILY LEAVES

Part of ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.

The new extension under ARPA takes effect April 1, 2021, and lasts through September 30, 2021. Like the current version, it remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the original provisions of the FFCRA. For example, they can’t deny EPSL or EFMLA to an employee if they’re otherwise eligible, can’t terminate them for taking EPSL or EFMLA, and have to continue their health insurance during these leaves.

Emergency Paid Sick Leave (EPSL) Changes

Here are the key changes to EPSL, in effect from April 1 through September 30, 2021:

  • Employees can take EPSL to get the COVID vaccine and to recover from any related side effects.
  • Employees can take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to COVID-19 or if the employer has asked them to get a diagnosis or test. (Previously, time spent waiting on test results was not necessarily covered, which seemed like an oversight.)
  • Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours while part-time employees are entitled to a prorated amount. Unused hours from before April 1 will not carry over.
  • Employers can’t provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer. (Be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Emergency Family and Medical Leave (EFMLA) Changes

Here are the key changes to EFMLA, in effect from April 1 through September 30, 2021:

  • EFMLA can now be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above.
  • The 10-day unpaid waiting period has been eliminated.
  • The cap on the reimbursable tax credit for EFMLA has been increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee, beginning April 1, 2020. This change accounts for the additional 10 days of paid time off—the daily cap of $200 remains the same.
  • The law isn’t clear as to whether employees are entitled to a new 12-week bank of EFMLA. We anticipate that the IRS, DOL, or both will provide guidance on this question soon. It is possible that an employee will be entitled to additional unpaid protected time off, even if they already received the maximum reimbursable amount during previous EFMLA leave(s). We will update our materials if and when new information is available.
  • Employers can’t provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer. (Again, be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Reasons for Using EPSL and EFMLA

Starting on April 1, employees can take EPSL or EFMLA for the same set of reasons, which is a useful simplification. The following are acceptable reasons for taking these leaves:

  1. When quarantined or isolated subject to federal, state, or local quarantine or isolation order
  2. When advised by a health care provider to self-quarantine because of COVID-19
  3. When the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or because their employer has requested the test or diagnosis; or obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination
  4. When caring for another person who is isolating or quarantining on government or doctor’s orders
  5. When caring for a child whose school or place of care is closed due to COVID-19

Employees and employers will—in most cases—want to exhaust EPSL first, since it has a higher tax credit, except when used to care for others.

Tax Credit Review

The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Tax credits are available as described below, regardless of how much EPSL or EFMLA an employee used prior to April 1.

  • The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100% of an employee’s regular pay, with a limit of $511 per day.
  • The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of an employee’s regular rate of pay, with a limit of $200 per day.
  • The credit available for EFMLA for any reason is up to 2/3 of an employee’s regular pay, with a limit of $200 per day and a cap of $12,000 per employee.

Employers can also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.

COBRA SUBSIDIES

Another important aspect of the law employers should understand is the creation of COBRA subsidies.

Employees and families enrolled in the employer’s group health plans may lose coverage if the employee’s work hours are reduced or employment is terminated. They can elect to continue coverage under COBRA, but the high premium cost can make it difficult to afford this coverage.

ARPA provides a 100% COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier).

For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but then will be reimbursed through a refundable payroll tax credit.

Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.

Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans can tailor for their use.

Note that the COBRA subsidy doesn’t apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they had continued to work.

OSHA’s New COVID-19 Guidance

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OSHA’s new guidance is advisory in nature and creates no new legal obligations. However, one of President Biden’s first acts after being sworn in was to sign an Executive Order on Protecting Worker Health and Safety that directs OSHA to increase enforcement of existing agency standards and investigate whether a new standard for COVID-19 mitigation is needed. Given that, employers may want to consider the new guidelines a strong recommendation. 

In a nutshell, OSHA recommends that employers and employees implement a COVID-19 prevention program that includes the following elements:

  1. Masks and social distancing
  2. A hazard assessment
  3. Measures to limit the spread of the virus
  4. Ways to identify (and send home) sick employees and policies for employee absences that don’t punish workers for staying home when sick
  5. Communication of coronavirus policies and procedures in both English and the primary language of non-English speaking workers
  6. Protections from retaliation for workers who raise coronavirus-related concerns

If you’re interested, you can learn more about the program here. 

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A Note on Requiring COVID-19 Vaccines

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With COVID-19 vaccinations underway and widespread availability in sight, many employers want to know whether they can require their employees to get the vaccine.

While recent EEOC guidance implies that they expect many employers to require a vaccine, there are already several states where bills are being introduced to prevent employment discrimination against those who refuse a vaccine (MN, NJ, SC), and it’s likely bills like this will be introduced in more states soon. Additionally, we anticipate that there will be state and federal lawsuits from individuals, which may result in rulings that impact the law in individual states or entire circuits (for instance, the Ninth Circuit, which covers AL, AR, CA, HI, ID, MT, NV, OR, WA, or the Eleventh Circuit, which covers AL, FL, GA).

Given the legal risks here, and since many Americans will not have access to a vaccine until Spring or even Summer, we believe it would be prudent for most employers to wait to see how things play out in courts and legislatures across the country before deciding to require vaccinations.

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Compliance Requirements for a Remote Workforce

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According to Gallup, the number of days employees are working remotely has doubled during the pandemic. Some companies are even considering making a remote work arrangement permanent. While there are no laws that exclusively apply to remote workplaces, remote work does come with additional compliance risks. Below is our general guidance for employers.  

Logging Hours and Preparing Paychecks

Make sure that employees are logging all of their time. Keep in mind that when working from home, the boundaries between work and home life are easy to blur. Employees may be racking up “off the clock” work, and even overtime, that they aren’t being paid for. While this may seem harmless enough in the moment, particularly if the employee isn’t complaining, unpaid wages can come back to bite you once the employee is on their way out the door.

Minimum Wage

Employees should be paid at least the minimum wage of the state where they physically work, whether this is a satellite office or their own home. Beyond that, it’s important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should follow the law that is most beneficial to the employee.

Breaks

Remote employees must take all required break and rest periods required by law, as if they were in the workplace.

Harassment Prevention Considerations

You may have employees working in a state that has a lower bar for what’s considered harassment or that requires harassment prevention training. You can find this information on the State Law pages on the HR Support Center.

Remote work also comes with additional opportunities for harassment (even if it doesn’t rise to the level of illegal harassment) such as employees wearing clothing that crosses the line into inappropriate, roommates in the background unaware that they are on camera, or visible objects that other employees may consider offensive. You can prevent these sorts of incidents by having clear, documented expectations about remote meetings, communicating those expectations to your employees, and holding everyone accountable to them. It also wouldn’t hurt to occasionally remind everyone to be mindful that they and what’s behind them are visible to coworkers when they’re on video. That said, going overboard with standards that you’re applying to employees’ private homes can cause anxiety and morale issues, so make sure your restrictions have some logical business-related explanation.

Workplace Posters

Many of the laws related to workplace posters were written decades before the internet, and so their requirements don’t always make sense given today’s technology.

The safest option to ensure you’re complying will all posting requirements in one fell swoop is to mail hard copies of any applicable workplace posters to remote employees and let them do what they like with the posters at their home office. If you have employees in multiple states, you should send each employee the required federal posters, plus any applicable to the state in which they work.

Alternatively, more risk-tolerant employers often provide these required notices and posters on a company website or intranet that employees can access. A number of newer posting laws expressly allow for electronic posting, but this option is not necessarily compliant with every posting law out there.

FMLA Eligibility

Remote employees who otherwise qualify will be eligible for leave under the federal Family and Medical Leave Act (FMLA) if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.

According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for example, if a remote employee working in Frisco, TX, reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from the company’s headquarters is immaterial.

Verifying I-9s

In normal circumstances, the physical presence requirement of the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.

However, in March, the Department of Homeland Security (DHS) temporarily suspended the physical presence requirement for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Inspection should instead be done remotely. As of the date of this newsletter, this temporary rule is still in effect.

Equipment

In some states, an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.

That said, an employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Allowing them to take home their ergonomic office chair, for example, would probably not be an undue hardship and therefore something you should do.

Deciding Who Can Work from Home

You may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. You should be able to support the business justification for allowing or requiring certain groups to telecommute.

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Four Steps to Take When an Employee Is Diagnosed with COVID-19

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As COVID-19 infection rates continue to climb, it’s imperative that organizations respond quickly when an employee is diagnosed. Here are the steps employers should take:

Notify Employees

Employees should be notified of potential exposure in the workplace, but they should not be told who is sick. Employees won’t like that they can’t gauge their own risk, but the Americans with Disabilities Act (ADA) requires this type of information remain confidential. Don’t worry if employees figure it out on their own, but make sure you’re not the one to reveal the information (and don’t drop sneaky hints to help them along).

Assess the Risk of Exposure and Quarantine If Advisable

If there was close contact for a prolonged period (about six feet or less for 15 minutes or more over the course of 24 hours), exposed employees should quarantine. If you aren’t confident in your risk assessment, call your local or state health authority to help you determine which employees should quarantine.

Disinfect Areas Used by the Sick Employee

The CDC recommends the following practices (among others):

  1. Close off areas used by the person who is sick for 24 hours, if possible.
  2. Open outside doors and windows to increase air circulation in the area.
  3. Clean and disinfect areas and items used by the person who is sick (their workstation, bathrooms, common areas, tablets, touch screens, keyboard, registers). Wait as long as possible before cleaning and disinfecting.

If it has been seven days or more since the person who is sick was in the workplace, additional cleaning and disinfection is not necessary.

For more detailed instructions on cleaning and disinfecting the workplace after someone is diagnosed, and lots of great general guidance, see the CDC’s Guidance for Business and Employers. Calling your local or state health authority is recommended as well. 

Determine When an Employee Can Return to Work

Sick employees should work with their healthcare provider to determine when to return to the workplace. Generally, an employee will be okay to return when at least 24 hours have passed since resolution of fever without the use of medication, and other symptoms have improved, and at least 10 days have passed since symptoms first appeared or since the positive test result, if the employee is asymptomatic.

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