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All U.S. employers must verify identity and work authorization for each employee hired within the U.S., including citizens and non-citizens, using “Form I-9, Employment Eligibility Verification” (I-9 Form).
All U.S. employers must verify identity and work authorization for each employee hired within the U.S., including citizens and non-citizens, using “Form I-9, Employment Eligibility Verification” (I-9 Form). Starting May 1, 2020, businesses nationwide must begin using the revised I-9 Form (rev. 10/21/2019).
Section 2 of the revised form requires employers to physically verify the employee’s original documentation to determine their legality. This revision must be done within the first three business days of the employee’s first day of work.
The Department of Homeland Security (DHS) announced that employers and workplaces operating remotely due to COVID-19 may follow the DHS news release which permits such employers to perform I-9 documentation inspections remotely over video link, fax or email, etc. so long as they obtain, inspect and retain copies of the documents within three business days of hire and enter “COVID-19” in the Form’s Additional Information field.
Employers who perform inspections remotely must also provide written documentation of their remote onboarding and work-from-home policy for each employee.
A physical document inspection must take place after normal operations resume, at which time the date of the physical inspection and who conducted it should also be recorded in the Additional Information field.
Please review these government-issued FAQs for more information about COVID-19 related Form I-9 compliance.
Employers who fail to use the revised form by the May 1 deadline may be subject to all applicable penalties under section 274A of the Immigration and Nationality Act as enforced by U.S. Immigration and Customs Enforcement.
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 25, 2020
Perhaps to dream but whether full business revival is prompt or eventual, the U.S. Equal Employment Opportunity Commission ( EEOC ) today issued expanded pandemic-related guidelines for screening returning employees .
Perhaps to dream but whether full business revival is prompt or eventual, the U.S. Equal Employment Opportunity Commission (EEOC) today issued expanded pandemic-related guidelines for screening returning employees.
As covered in Infection Protection, What Employers Can Ask in a Pandemic (March 25), the EEOC has loosened many of its normal-time Americans with Disabilities Act (ADA) restrictions against employer intrusions into worker illness symptoms and medical care.
Symptomatic Workers Stay Home: Thus, by the EEOC’s "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act," management for example may send a worker home if displaying or disclosing any COVID 19-related symptoms (e.g., fever, chills, cough, shortness of breath, or sore throat). It is irrelevant that the employee may have no more than an allergy or common cold. Employers may also apply this principle for people returning. Yet, it’s one thing to simplistically request “symptom free, please” (definitely not a best practice) and quite another to easily find consensus among the myriad federal agencies when a COVID-19 infected or suspected person is considered no longer contagious. However, Los Angeles County Department of Public Health (LACDPH) “Home Isolation Instructions” offer:
“Stay home until at least 7 days have passed after your symptoms first appeared AND at least 3 days after you have recovered. Recovery means that your fever is gone for 72 hours without the use of fever-reducing medications and your respiratory symptoms (e.g. cough, shortness of breath) have improved.”
Management May Require COVID 19 Testing to Enter Workplace: The EEOC now advises that employers may administer a mandatory “test to detect the presence of the COVID-19 virus” to employees “before permitting them to enter the workplace.” While across-the-boards medical testing is only occasionally justified in normal times, the agency is greenlighting such pandemic assessment as a workplace health and safety necessity. The EEOC leaves it to business management to “ensure that the tests are accurate and reliable” and suggests consulting the Food and Drug Administration (FDA) for guidance in turn. A search of the FDA’s online COVID-19 FAQs shows that agency is scrambling:
“Q: Is there a test for COVID-19?
“[FDA Answer]: Yes, there are tests for COVID-19. Though there is currently no FDA-approved or cleared test for COVID-19, the FDA has issued several Emergency Use Authorizations (EUAs). During public health emergencies declared under [law], the FDA is able to issue EUAs when certain criteria are met that allows for the use and distribution of potentially life-saving medical products to diagnose, treat, or prevent the disease, which can include diagnostic tests.”
As with previous scourges such as Ebola (2014-present), testing will become more assured and FDA-approved as more is known about COVID-19. For the time being, management best practices should include adequate research to confirm that any test used is FDA-recognized. Employers must maintain all test results confidential, included in the separate health information files for respective workers.
Employers Permitted to Take Employee Temperatures Daily: The EEOC has also relaxed its usual-times prohibition of blanket temperature taking as a medical examination in violation of worker privacy. Until further notice however, the “gloves are on” for reliable temperature taking of every employee on arrival to the workplace, with individuals sent home if displaying any fever and with all information preserved as confidential,.
Employers Should Develop an Overall Screening Plan: The EEOC advises that employers may continue the above extraordinary measures as long as the pandemic poses a “direct threat” as “based on the best available objective medical evidence.” As the backside of the COVID-19 curve becomes more evident, public health authorities are likely to take a gradual, trial-period approach to reversing their currently strict “stay home” directives. Management best practices should include transitional policies consistent with these developments, including the EEOC’s return to its tighter pre-pandemic restrictions.
See also:
Our firm is currently helping many employer clients to develop critical policies and procedures that enable continued or resumed operations while protecting worker health and safety in this extraordinary time. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
April 23, 2020
We are in our fifth week following Governor Newson’s March 18 order requiring all California residents until further notice to stay at home or place of residence except for those in businesses and functions deemed essential to 16...
We are in our fifth week following Governor Newson’s March 18 order requiring all California residents until further notice to stay at home or place of residence except for those in businesses and functions deemed essential to 16 federally-designated “critical infrastructure” sectors.
The state last updated yesterday its “COVID Response – Stay Home Except for Essential Needs FAQs” offering further guidance.
Since our initial April 3 listing, we count four more California counties joining those which have implemented similar – and in many instances progressively stricter -- “Safer at Home” or “Shelter in Place” orders. To our knowledge, and as of April 17:
Thanks to our legal assistant Daniska Coronado for this compilation. There appears to be no other attempted comprehensive statewide listing readily available online.
Perhaps there is good reason for this. We cannot confirm this collection is complete or will even still be current by nightfall. As applies to your locale, please use the above links and other online resources for updates. Requirements of varying strictness continue to change frequently, municipality-by-municipality.
See also:
For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
Daniska Coronado
April 17, 2020
Facing COVID-19’s unfolding (sur)realities, LA City, LA County, Pasadena and Riverside County, among other local California public health authorities, have ordered that wear-a-mask and six-foot distance “recommendations” are now mandatory...
Facing COVID-19’s unfolding (sur)realities, LA City, LA County, Pasadena and Riverside County, among other local California public health authorities, have ordered that wear-a-mask and six-foot distance “recommendations” are now mandatory whenever possible for workers at essential businesses.
Effective April 10, a City of Los Angeles Worker Protection Order requires all workers from legally operating businesses to “wear face coverings over their noses and mouths while performing their work.” This LA City order requires employers to provide “fabric coverings, such as scarves and bandanas” to be discarded properly if single use or washed at least once daily if not. It also mandates that customers and visitors wear masks and permits such businesses to deny access to any who do not. Those businesses must also facilitate employee hand washing or sanitizer use at least every 30 minutes, as well as supply proper, sanitized restrooms, and cleaning products. Additionally, the LA City order requires all such businesses to implement social distancing for employees, as well as customers and visitors.
The LA City Order goes further: by midnight April 15, 2020 essential businesses must adopt and post near their entrances a “Social Distancing Protocol” for every facility they operate, a sample provided in Appendix A to the order.
Referencing that same Appendix A, Los Angeles County through an April 10 revised Safer-at-Home Order has the same notice posting requirement, as does Pasadena, through its April 11 Revised Order for Control of COVID-19. Affected employers also must give copies of that Social Distancing Protocol to their employees and furnish implementation evidence of that applicable order if any authorities inquire.
LA County’s and Pasadena’s orders mandate that essential businesses provide cloth face coverings to employees and contractors if their “duties require close contact with other employees and/or the public,” and define close contact as “within 6 feet of someone else for at least 10 minutes.” They require members of the public entering a business to wear face coverings as well.
Riverside County’s amended April 6, 2020 Order requires that all operating essential businesses identify and adopt needed measures to “implement social distancing.” The county now requires: “All persons, including Essential Workers, shall wear face coverings, such as scarves (dense fabric without holes), bandanas, neck gaiter, or other fabric face coverings.” The Riverside Order also discourages non-medical use of “Personal Protective Equipment . . . such as N95 masks.”
These orders also variously require measures such as limiting number of public entering a business, marking six-foot intervals when lines will form, providing sanitizing products at entrances, regular disinfecting of “high-touch surfaces,” and other steps to prevent spread of COVID-19.
Any businesses whose employees are required to wear face coverings at work must either supply the coverings or reimburse the cost of the face coverings as a business expense.
The only thing constant on this largely uncharted legal landscape is change. We will shortly bring you further local “flatten the curve” updates statewide.
See also:
For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
April 15, 2020
On March 27, 2020, President Trump approved The Coronavirus Aid, Relief, and Economic Security ( CARES Act ), a $2 trillion relief package intended to protect small business from the economic impacts of COVID-19.
On March 27, 2020, President Trump approved The Coronavirus Aid, Relief, and Economic Security (CARES Act), a $2 trillion relief package intended to protect small business from the economic impacts of COVID-19.
Some media have overstated CARES Act business loans as “free money” or “fully forgivable.” Enterprise owners should proceed with caution, do their homework, and not automatically assume any of these four loan types will be fully forgiven:
CARES Act Paycheck Protection Program (PPP). The PPP loan is intended to help small businesses keep their workers on the payroll. Treasury Department guidelines confirm collateral or personal guarantees are not required. The loan currently has a maturity of two years and a 1% interest rate. Applicants apply for the loan through a banking institution or credit union. Businesses receiving a PPP loan may not also claim Employee Retention Credits (i.e., tax-refundable credits equal to 50 percent of qualified wages paid after March 12, 2020 and before January 1, 2021 up to a specified maximum amount).
The Small Business Administration (SBA) will forgive a portion of the PPP loan proceeds if the business can retain or restore its average pre-pandemic number of employees and the money is used for payroll and most rent, mortgage interest and/or utilities expenses over the eight weeks from loan funding. The SBA has announced it will publish further guidance on the loan forgiveness component in the coming week or so.
These links provide further information on the PPP program, leading to application forms:
Economic Injury Disaster Loan (EIDL). Small businesses that apply for an EIDL loan can request an immediate advance of up to $10,000 to offset a temporary loss of revenue. Applicants may apply directly on the SBA’s website. The loan advance does not have to be repaid even if the loan is denied. However, if the business also obtains a PPP, the PPP loan forgiveness will likely decrease by the $10,000 EIDL advance, and the EIDL and PPP loans may not be used for identical payroll expenses. Click on this link for more information:
Express Bridge Loan (EBL). The EBL permits small businesses with pre-existing SBA “Express Lender” relationships to quickly access up to $25,000 to help overcome the temporary loss of revenue. For example, if an enterprise urgently needs cash while waiting for EIDL approval and disbursement, it may qualify for this bridge loan, to be repaid in full or in part by the EIDL loan proceeds. For more information, please click here.
SBA 7(a) Loans (Standard and Express Loans). This is the SBA’s longstanding program for providing small businesses with financial assistance. Please click on this link for more information.
Best practices include:
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 14, 2020
With an estimated 95% of America's residents, some 306 million people, now under some form of “stay home,” “safer at home,” “shelter in place” order , employers face unprecedented (sur)realities, ranging from the sudden need for workforce...
With an estimated 95% of America's residents, some 306 million people, now under some form of “stay home,” “safer at home,” “shelter in place” order, employers face unprecedented (sur)realities, ranging from the sudden need for workforce reduction, blanket layoffs and furloughs, hastily constructed COVID-19 driven unemployment benefit alternatives, and the rapidly emerging and sometimes conflicting interpretations of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act.
We undertake to survey this wave of new laws and their applications in a 53-minute webinar Employment, Payroll, Leaves and Benefits in a COVID-19 World, produced by ePractice Manager, a leading dental practice management firm partnered with Nobel Biocare and the Texas Dental Association among others.
Short of an hour, we take on:
Viewing is without charge. As follow-up for participants, we provide no-charge the session’s PowerPoint panel set and other materials on email request.
Big thanks to ePractice Manager for the broad platform on which to present this vital information.
Please take advantage. “Knowledge is power” may be cliché but true.
Tim Bowles
April 10, 2020
As reported in Federal Coronavirus Workplace Relief (March 23) and COVID-19 Gets Noticed (April 2) the March 18 Families First Coronavirus Response Act ( FFCRA ) requires most employers with fewer than 500 on payroll to provide paid sick...
As reported in Federal Coronavirus Workplace Relief (March 23) and COVID-19 Gets Noticed (April 2) the March 18 Families First Coronavirus Response Act (FFCRA) requires most employers with fewer than 500 on payroll to provide paid sick and family leave wages for certain COVID 19-related absences.
The FFCRA includes employer tax credits to fully offset qualified leave amounts paid between April 1 and December 31, 2020, including an employer’s share of Medicare tax and its cost of maintaining absent workers’ health insurance coverage.
On March 31, 2020, the Internal Revenue Service published frequently-asked questions (FAQs) on steps to obtain these credits.
FAQ Nos. 12-13 and 37-43 detail how eligible employers can claim the credits on federal employment returns, including IRS Form 941.
Employers may reimburse themselves more quickly by drawing from their federal employment tax set-asides to matching leave pay-outs, claiming any remaining difference as a credit on a future return. See, Form 7200, Advance Payment of Employer Credits Due to COVID-19. Form 7200 Instructions include helpful background information and examples.
See also:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 9, 2020
As of April 7, all but five states (the Dakotas, Nebraska, Iowa, and Arkansas) have some form of COVID-19 “safer at home” orders in place .
As of April 7, all but five states (the Dakotas, Nebraska, Iowa, and Arkansas) have some form of COVID-19 “safer at home” orders in place. For those businesses permitted or directed to stay open as part of the 16 federally-designated “critical infrastructure” sectors, management faces the critical responsibility of balancing production with protection.
While government entities hastily continue to issue voluminous guidelines on an operating employer’s do’s and don’ts (see, Infection Protection, What Employers Can Ask in a Pandemic, “Infection Article,” March 25, 2020), overlapping federal, state and local agencies are thus far answering the most sensitive questions differently, if at all. Thus, it’s all the more important that management promptly adopt and apply policy that reflects sound judgment under these unprecedented conditions.
Those policies should address requirements for the more-stringent isolation of confirmed and suspected COVID-19 cases and the less-severe quarantine of those with exposure, actual or possible, to such cases.
Who Must Be Isolated from a Still-Operating Company?: All government levels acknowledge that an individual who has, “may have” or is “likely to have” COVID-19 should follow stringent isolation guidelines. For instance, Los Angeles County Department of Public Health (LACDPH) “Home Isolation Instructions” include a strict “stay home” standard, separation from one’s family and pets at home, avoiding shared bedding, eating utensils, etc.
However, just who is an isolation candidate will remain vague as long as guidance from the Centers for Disease Control is indefinite on the full range of COVID-19 symptoms. As of March 24, the CDC acknowledged: “Limited information is available to characterize the spectrum of clinical illness associated with coronavirus disease 2019 (COVID-19) … Most patients with confirmed COVID-19 have developed fever (may be subjective or confirmed) and/or symptoms of acute respiratory illness (e.g., cough, difficulty breathing).” Emphasis supplied.
For lack of any definitive list, best employer practice would include a written protocol which lists qualifying symptoms for isolation as those published by an official source, whether or not such COVID-19 symptoms overlap with other ailments such as cold, flu or allergies. See, e.g., the Kansas Department of Health and Environment comparison chart. (Note that the CDC currently publishes only a generic chart comparing “flu” and “common cold,” nothing as yet for COVID-19 comparison.)
Who Must Be Quarantined from an Operating Company?: All government levels concur that a person who has been in “close contact” with another who has, “may have” or is “likely to have” COVID-19 should follow somewhat less stringent quarantine guidelines. The LACDPH “Home Quarantine Guidance” includes staying home except for required medical care for 14 days.
However, just who is a quarantine candidate depends on which government guidance one choses to rely upon for the definition of “close contact.”
As of yesterday, April 7, the CDC “close contact” definition is: “(a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case; or (b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on). Emphasis supplied. This directive defines neither “approximately” nor “prolonged.”
The LACDPH “close contact” definition is: “(a) being within six feet for more than ten minutes; or (b) unprotected direct contact to secretions or excretions (for example, sneeze, cough, sweat) of a person diagnosed or who are likely to have COVID-19.” Emphasis supplied. However, this LA county directive fails to explain whether that “more than ten minutes” is precise time down to one second beyond ten minutes or is ten-minutes consecutive, cumulative, or both.
For lack of any definite, consistent “close contact” standard from the government, best employer practice would include a written protocol which “errs” on the side of caution, i.e., once there is any question of contact within six feet for anything other than a fleeting pass-by, judgment should be exercised in the favor of quarantine.
What Must Operating Companies Do to Limit Spread After a Worker’s COVID-19 Diagnosis or Symptoms?: As explained in the Infection Article, the extraordinary current circumstances have led the Equal Employment Opportunity Commission (EEOC) to re-issue and update a guidance greatly relaxing employer prohibitions on inquiries on worker illness symptoms and related conditions. However, once management of a still-operating business is on notice of an employee who must isolate or quarantine, the question of who and how to ask for co-worker “close contacts” is one that even the EEOC has not yet progressed to address.
The issue is how far an employer can or should go to notify and protect other workers and their families of possible workplace exposure to the disease notwithstanding the privacy rights of the worker afflicted with COVID-19 or its reported symptoms. For lack of government direction to date, best practice would include a written protocol that seeks the subject worker’s written consent: (a) to disclose to management all fellow employees with whom he/she has had close contact while having any COVID-19 symptoms; and (b) to management’s identification of that employee in its inquiries to company employees to determine who, if any, have had such close contact with the person.
See also:
Our firm is currently advising a wide range of employer clients on the development of critical policies and procedures that enable continued delivery of essential goods and services while protecting workers from unnecessary exposure to possible COVID-19 infection. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Tim Bowles
April 8, 2020
Welcome to our new pandemic-driven world, evolving daily. On March 19, 2020, California Governor Gavin Newson issued Executive Order N-33-20 requiring all California residents until further notice to stay at home or place of residence...
Welcome to our new pandemic-driven world, evolving daily.
On March 19, 2020, California Governor Gavin Newson issued Executive Order N-33-20 requiring all California residents until further notice to stay at home or place of residence except for those in businesses and functions deemed essential to 16 federally-designated “critical infrastructure” sectors. See, Essential Critical Infrastructure Workers. In essence, the governor directed:
“The supply chain must continue, and Californians must have access to such necessities as food, prescriptions and health care. When people need to leave their homes or places of residence, whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all times practice social distancing.”
The state is constantly updating its “COVID Response – Stay Home Except for Essential Needs FAQs” for further guidance.
Many California cities and counties have implemented similar – and in many instances progressively stricter -- “Safer at Home” or “Shelter in Place” orders. To our knowledge, there is as-yet no comprehensive online resource listing all of these. As of April 3:
Effective March 25, 2020, Los Angeles County’s Department of Public Health issued rules for “isolation” (people infected or “likely” infected [showing symptoms]) and another set for quarantine (people in “close contact” [within six feet for more than ten minutes or in direct contact, e.g. sneeze, cough, sweat]) with someone infected or likely infected.
As applies to your locale, it is important to click the above links for updates, as requirements, dates, and information are changing frequently.
See also:
For more information about these laws or other employment issues related to coronavirus, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
Daniska Coronado
April 3, 2020