Category: COVID-19

10

September, 2023

DHS Incentivizes Employers to Enroll in E-Verify Program

The window has now closed for employers to catch-up on physically inspecting work authorization documentation for individuals who were hired during the pandemic.  At the same time, regulations from the Department of Homeland Security (DHS) that took effect August 1, 2023 open a new window for employers to continue with video inspection of work authorization for remote workers – with a catch.  Video inspection only applies to those enrolled in the government’s E-Verify program.

How We Got to This Point

All employers are generally required to physically inspect documentation provided by new hires, within the first three days of starting work, that confirms a new employee’s eligibility to work in the United States.  Between March 20, 2020 and July 31, 2023, DHS temporarily excused the physical inspection requirement for those employees who did not physically report to a work location on a regular, consistent or predictable basis.  Instead, employers were authorized to inspect supporting documentation remotely through video, fax, or email, and retain copies of that documentation.  This past summer, DHS warned that the pandemic flexibility was ending as of July 31, 2023, and that employers would need to retroactively conduct physical inspections of documentation previously submitted remotely by new hires during the pandemic flexibility period.

E-Verify Opens a Window for Remote Inspection

Regulations recently issued by DHS offer an exception to the physical inspection requirement for those employers that are enrolled in its E-Verify program.  E-Verify is an online process that cross-references records available to the U.S. Department of Homeland Security and the Social Security Administration to verify that a new hire has submitted appropriate documentation reflecting the individual’s eligibility to work in the United States.

E-Verify participants in good standing are permitted to rely on remote inspection, provided it is comprised of the following steps, in sequential order:

  1. 1. Examination of all submitted documentation (front and back for two-sided documents) to confirm it reasonably appears to be genuine;
  2.  2. A live video interaction with the individual presenting the documentation to additionally ensure that it aligns to the individual (and there are no impostors or forgeries);
  3. 3. Indication on the form I-9 that an “alternative procedure” was used to examine documentation; and
  4. 4. Retention of all the documentation submitted, in a place where it can be available for future inspection in the event of an audit.

Clean-Up Required for Those Hired During the Pandemic

For those hired during the pandemic flexibility period, employers that already were enrolled in E-Verify have been permitted to utilize the new remote video verification process to confirm work authorization.  To do so, employers need to go back to the case previously created for that new hire in E-Verify and note “alternative procedure” with the date of the live video interaction in the “additional information” field on the Form I-9 or in Section 3.  Employers that are newer to E-Verify and were not enrolled for the entire pandemic flexibility period are expected to have gone back and conducted physical inspections of documentation for those hired prior to the employer’s enrollment in E-Verify.

August 30, 2023 was the deadline for all employers to complete this reverification process.  Employers that were otherwise occupied and have not yet completed this process should expedite procedures to bring their records into compliance.

By Tracey I. Levy

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4

August, 2022

Workplace Investigations: Video vs. In-Person Interviews

Prior to the pandemic, in-person interviews were generally considered the preferred method of conducting workplace investigations. They allowed the investigator to build rapport with the interviewee, the investigator could observe behaviors by the interviewee that might be relevant to credibility, and the investigator could know who was present for the interview and ensure a private meeting.  But in March 2020, that all had to change.  My Cornell colleagues and I wrote an article at that time, assessing the opportunities that videoconferencing offered as a virtual alternative to in-person interviews and identifying the caveats and precautions for which the investigator should be prepared.

Nearly two and a half years later, while employees have returned to their workplaces to varying degrees, I continue to conduct virtually all my workplace investigations by videoconference. Yes, it saves me a commute, but I actually like getting out into the world with people and I care deeply about ensuring the integrity of my investigations, so saving the commute would not suffice if it compromised my quality standards. Rather, over the period that remote interviews were the only viable option, I have come to appreciate some enduring advantages that they offer over in-person interviews.

Ensuring Privacy

Pre-COVID, one of the greatest challenges I faced when conducting in-person interviews was in securing a private location for those meetings. Most workplaces have shifted to glass-walled offices and conference rooms, many with little or no shading to afford visual privacy. I would strategically situate myself so that I faced outward, and only the interviewee’s back would be visible to passers by, but that afforded only a limited degree of anonymity. I would request to use a conference room or office that was off the beaten path, or at least in a different location than the coworkers of the people I would be interviewing – with mixed success.

For one investigation, I visited nearly every coffee house in a five-town radius of the client’s office.  No interviewee felt comfortable that the office could afford privacy and each had a different idea, in relation to their own hometown, as to where our presence would go unnoticed.  Investigation interviews can be conducted successfully in a coffee house or similar public space, but it requires the right mix of variables – other people conversing, so that my interview will not be a prominent sound in the space; a table spaced far enough from others such that it will be difficult for the people closest to us to eavesdrop; and frequent turnover or activity so that if we lingered longer it would not be noticed.

Videoconferencing spares me most of those logistical challenges. With the caveat that my interviews are generally conducted in areas where wifi access is abundant, I have extremely rarely had to shift from video to audio only interviews. Even employees who do not have a laptop or tablet are able to meet through their smartphone. The challenge with videoconferencing is that you never know who may be offscreen, just as you never know if your conversation is being recorded, so confirming the person is in a private place to speak sets a baseline expectation.

Keeping Everyone Safe

Videoconferencing offers the ultimate assurance of social distancing. While we may have moved past the worst of the pandemic, the need to quarantine or isolate due to exposure to COVID-19 can still arise at any time, and side-line plans for in-person meetings.

Videoconferencing also reassures all parties against exposure to other infectious diseases and milder ailments.  Years ago, when I was conducting investigations internally as an Employee Relations specialist, I once came to work while fighting a bad head cold so I could proceed with the scheduled interview of the respondent, a relatively senior manager who had a very busy schedule. After the interview, I received feedback from the HR Business Partner that the respondent complained I had been sneezing throughout our meeting. Rather than being  appreciated for my perseverance and commitment, I had made the manager uncomfortable by my physical presence. It was an interview that I should have postponed, or taken from the safer distance of a video screen.

More recently, I met in person to interview the respondent for a particularly sensitive matter.  Having just recovered from COVID-19 and completed my 10 days of isolation, I was feeling unusually secure about meeting in-person.  The day after the interview, I developed symptoms and tested positive for a rebound of COVID, and was put in the uncomfortable position of having to reach out to the respondent and others who had been present for that interview to advise them of their possible exposure.  Meeting by videoconference ensures that the investigator, the interviewee, and any third-party representatives are all safe from infection.

Moving Things Along

One of the other benefits of videoconferencing is that it enables speedier coordination of meetings.  Scheduling time to meet with individuals who travel frequently or work in multiple locations is much simpler when they can join via videoconference from virtually anywhere.

Making Exceptions

Notwithstanding these benefits, there still are times when videoconferencing may not be an ideal option. In particular, videoconferencing makes it slightly more challenging to build rapport and make the interviewee comfortable enough to provide the investigator with responsive information.  For that reason, when conducting interviews of individuals who report having experienced traumatic situations, such as sexual assault, in which building and maintaining that rapport and comfort is essential, the benefits of meeting in-person may outweigh the challenges.

There is no one right way to conduct workplace investigation interviews, provided there is a considered process behind decisions that are made.  Videoconferencing offers advantages, and my old bias toward in-person interviews has given way to a new reality.

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In this Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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1

August, 2022

3 Key Considerations Under GINA – the Federal Law You May Have Overlooked

The Genetic Information Nondiscrimination Act (GINA) may be the sleepiest of the federal EEO laws, the one that many employers have never heard of or have entirely forgotten.  It prohibits employers from collecting genetic information from employees and using that as a basis for employment decisions.  Most employers, in the practical realities of day-to-day interactions, have little or no interest in their employees’ genetic information and never run afoul of the law.  The EEOC’s charge-filing statistics reflect this as well.  Of the tens of thousands of charges filed annually with the EEOC, typically only 200 to 300 include reference to a claim under GINA. 

But things have changed a bit with the pandemic. Charge filings asserting a violation of GINA spiked to 440 in 2020 as employers began more formally to formally probe into employees’ personal lives, and the EEOC posted lengthy guidance on employers’ obligations under various federal laws, including GINA, when responding to the COVID-19 pandemic.  The EEOC’s guidance sets the parameters of appropriate inquiries in the COVID-19 context, but it also serves as a primer for employers on the scope of GINA. 

Don’t Ask About Family Members 

GINA prohibits employers from asking medical questions about family members. In the COVID-19 context, that has meant that employers seeking to gather information about employees’ COVID exposure can ask if an employee has been in close contact with someone who tested positive or was exhibiting symptoms of COVID. An employer cannot ask whether an employee’s family member has tested positive for or exhibited symptoms of COVID. The latter inquiry runs afoul of GINA. 

Similarly, in more typical workplace interactions, employers should coach their managers not to probe too closely into employees’ family medical histories. If an employee reports a recent cancer diagnosis, for example, an appropriate response is to express sympathy and ask if the employer can provide support. An inappropriate response in having that conversation is to ask whether cancer runs in the employee’s family, or anything along those lines – such inquiries might be common in conversations with friends and neighbors, but in the workplace they may run afoul of GINA. 

A Florida-based medical practice learned a painful lesson on the reach of GINA. The employer had been collecting employees’ family members’ COVID-19 testing results. The EEOC recently announced it had reached a conciliation agreement with this employer, which included payment of compensatory damages and back pay to employees, posting a notice, and conducting training on EEO laws pertaining to COVID-19. The employer also had to stop collecting employees’ family members’ test results. 

Collecting Vaccination Information is Permissible 

The EEOC guidance clarifies that information on vaccination status (as distinct from COVID symptoms or test results) is not considered family medical history. Therefore, employers can request proof of vaccination of employees and their family members without violating GINA. Notably, though, if an employer were to gather information on medical history related to an employee’s family member’s vaccination status, then the employer would potentially run afoul of GINA. It was important to the EEOC’s analysis that the pre-vaccination screening questions for COVID-19 do not seek family history or any other type of genetic information. 

Incentivizing Vaccinations is Complicated 

Employers looking to take their COVID precautions to the level of incentivizing employees’ family members to get vaccinated face various hurdles under GINA:

  1. 1. Beware of incentives.

The employer cannot offer an incentive to the employee in exchange for a family member receiving a vaccine from the employer or the employer’s agent because, in posing the pre-vaccination medical screening questions, the employer would thereby be collecting family medical history on the employee.

2. Make it Purely Voluntary

The employer must ensure that the vaccinations of family members are purely voluntary, meaning that the employer neither requires employees to have their family members get vaccinated nor penalizes employees whose family members opt not to be vaccinated.

3. Keep it Confidential

Employers need to safeguard the confidentiality of the medical information obtained from family members during the screening process, and ensure it is not shared with anyone who makes employment decisions involving the employee.

4. Get Written Consent

Employers need to obtain prior, knowing, voluntary, written authorization from the family members before asking any pre-screening questions or administering the vaccine.

Other EEO laws may present additional hurdles in the vaccination context, and employers are advised to consult legal counsel before implementing any vaccine incentive program. 

By Tracey I. Levy

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18

July, 2022

EEOC Removes Employers’ Blanket Authorization to Test Employees for COVID-19

Responding to the evolution of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has concluded that we are past the emergency stage when it was always considered appropriate for employers to require screening tests of employees for COVID-19.  Updated guidance provides that, going forward, employers will need to treat COVID-19 testing like other medical examinations, under the standards of the Americans with Disabilities Act (ADA).  Most significantly, this requires that any mandated test be “job-related and consistent with business necessity.”

When COVID Testing Is a “Business Necessity”

The EEOC explained that “business necessity” is met in various circumstances:

  • To comply with government requirements or guidance – If guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, or state or local public health authorities recommends COVID-19 testing, then employers’ compliance with those guidelines will be considered a “business necessity.”
  • Based on likelihood of infection and transmission – This requires employers to weigh the relevance and impact of a range of factors, including: the level of community transmission, the vaccination status of employees, the accuracy and speed of processing various types of COVID tests, the degree of breakthrough infections among employees who are current on their vaccinations, the ease of transmissibility of the current variant, the possible severity of illness from the current variant, the types of contacts employees may have with others in the course of their work, and the potential impact on operations if an infected employee enters the workplace. The EEOC’s guidance does not elaborate on the weight to be accorded to any specific factor, or how many factors need to be present to reach the level of “business necessity,” but it does advise employers to check the latest CDC guidance to determine whether screening testing is appropriate based on the listed factors.
  • If an individual is exhibiting symptoms in the workplace – On an individualized basis, an employer may require further screening or COVID-19 testing if the employee at work is exhibiting symptoms or an employer otherwise has a reasonable belief based on objective evidence that the individual has COVID-19, and testing would be consistent with recommendations by the CDC or other public health authorities.

The EEOC’s guidance permits employers to require COVID-19 viral screening when one of the above circumstances apply.  However, the guidance is emphatic that employers cannot require employees to submit an antibody test (as distinguished from a viral screening test) before reentering the workplace.

Screening Questions Are Still Permitted

Under the updated guidance, other types of less-intrusive screening for COVID-19 remains permissible.  Employers can ask employees who are physically entering the workplace if they have COVID-19 or associated symptoms, and whether they have been tested for COVID-19.  Employers also can ask employees who work on-site and report feeling ill or who call in sick questions about their symptoms to the extent those symptoms relate to screening for COVID-19.

Those who respond that they are infected or exhibiting symptoms may still be excluded from the workplace, but employers cannot entirely prohibit them from working if remote work is feasible.  Similarly, employees who refuse to respond to the employer’s screening questions may be excluded from the workplace.

Screening and Evaluating Job Applicants

Employers may additionally screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided that screening is similarly administered to all employees in the same type of job who are entering the workplace.  At the pre-offer stage, screening of job applicants before they come in for an interview is only permissible if the employer screens all individuals, including visitors and contractors, before permitting entry to the worksite.

Given the relatively short period of time required for isolation or quarantine for those who test positive for COVID-19, the EEOC’s updated guidance limits the circumstances in which an employer can withdraw a job offer for an applicant who has tested positive for COVID-19.  The employer must be able to show that the job requires an immediate start date, the CDC guidance recommends the person not be in proximity to others, and the job requires that the individual be in proximity to others (it cannot be done remotely).

By Tracey I. Levy

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20

March, 2022

COVID Mandates Have Lessened But Employers Still Have Obligations

By Alexandra Lapes and Tracey I. Levy

New York State employers may now suspend implementation of their infectious disease prevention plans (otherwise known as HERO Act plains), as the state’s order designating COVID-19 as a highly contagious communicable disease expired on March 17, 2022 and thus far has not been extended.  As COVID-related mandates have largely been lifted or expired across the tri-state, employers are once again left in a state of uncertainty – after two years of massive regulations, what is still required and where do employers have discretion to act independently in responding to the pandemic?  The short answer is that it varies, and we have endeavored to summarize the current state as of March 2022.

COVID-Related Restrictions and Current Effect

CDC Guidelines Applicable Throughout the County

The CDC continues to require individuals who are two and older to wear a face mask on public transportation and conveyances such as trains and airplane.  Outside that context, the CDC maintains its distinction between those who are and those who are not vaccinated, and recommends that unvaccinated people continue to wear a face mask at public events and gatherings around other people.

New York State and New York City

Masks are no longer mandatory in most settings

Effective as of February 10, 2022, Governor Hochul lifted the indoor mask-or-vaccine mandate for all private sector employers in New York State.  As a result, most employers now have discretion as to whether and when to require face coverings.  However, in addition to the CDC mandate for public transportation, masks are still required for certain high-density and particularly vulnerable settings, including all health care settings regulated by the Department of Health and other related state agencies, nursing homes, adult care facilities, correctional facilities, detention centers, homeless shelters, and domestic violence shelters, public transit and transportation hubs.

NYC customers need no longer prove vaccination status, but proof is still required for employees

New York City suspended the “Key to NYC” mandate as of March 7, 2022, that had required businesses to verify vaccination status as a condition of entry to indoor dining, fitness, and entertainment venues in the city.  However, through a new Mayoral Executive Order issued on March 4, 2022 and ongoing requirements by the New York City Department of Health and Mental Hygiene (DOHMH), all employees who work in-person in New York City – for every type of employer – must provide or have provided proof of vaccination against COVID-19 to their employers.  Employers must exclude from the workplace any worker who has not provided such proof, unless an exception due to a religious or medical accommodation applies, or a worker only enters the workplace for a quick and limited purpose.

In addition to the vaccination requirement, New York City employers currently must continue to:

  • Post an official DOHMH sign in a conspicuous location at the business; and
  • Keep a record of each worker’s proof of vaccination (including ensuring employees get their second dose) and any reasonable accommodations.

Employers who previously posted a notice per the Key to NYC requirements do not need to post the DOHMH attestation sign.

New Jersey and Connecticut – Reprieve from Face Coverings

For New Jersey employers, as of March 7, 2022, the statewide mask mandate has been lifted, as the Governor signed an executive order withdrawing the declaration of COVID-19 as a public health emergency.

For most employers in Connecticut, all business sector rules enacted to prevent the spread of COVID-19 were lifted as of May 19, 2021, with limited exceptions where face coverings were still required.  Those exceptions are still in effect in accordance with the latest order issued by the Connecticut Public Health Commissioner effective February 28, 2022, and face masks are therefore still required in schools, healthcare settings, and shelters.

Ongoing COVID Leave Obligations

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leaves, that remain in effect.  We have broken down the key pieces of COVID-related leave provisions effective in the tri-state area below.

For more information regarding NY and NJ on-going pandemic-related paid leave provisions see this blog article, and the series of COVID-19 leave articles on our blog.

Stay Informed

The news is swirling with reports of new COVID-19 variants developing, some of which may trigger future restrictions.  Therefore it is prudent for employers to continue to monitor for further updates.  We have provided links below for current standards issued at the federal, state and local levels impacting employers in the New York tri-state area.

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