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Form I-9 Flexibility
Jul 23, 2021 4:58:00 PM
Under this U.S. Department of Homeland Security (DHS) rule, which was first announced on March 20, 2020, if your employees are working remotely as a result of COVID-19, you may initially inspect those employees’ identity and work authorization documents remotely (e.g., by video link, fax, or email) to verify or, if necessary, re-verify, their work eligibility, the rule also makes clear that, once those remote employees commence or resume non-remote work, you must physically inspect their original documents, in person, within three business days. At that time, you must also make a note in the Additional Information field of the employee’s Form I-9, reflecting the date you did this follow-up inspection and who conducted it.
This Form I-9 flexibility rule was initially set to expire on May 19, 2020, but, as the COVID-19 pandemic raged on, DHS extended the rule several times. Initially, the rule applied only to employers and workplaces that were operating entirely remotely, but the flexibilities were later extended to cover all employees working exclusively on a remote basis because of COVID-19. Under its most recent guidance, announced on May 26, 2021, DHS indicated that the flexibility rule would be extended through August 31, 2021.
Over the past months, many employers have used the Form I-9 flexibility rule to onboard employees who were initially hired to work on a remote basis or to re-verify incumbent employees working remotely. However, as the pandemic has subsided, many of those employees are now starting or resuming work at their employers’ regular offices and workplaces.
Employers should remember that, when these remote employees begin working non-remotely, the employer needs to follow up – within three days – to conduct the in-person document inspection. But what if an employee does not fully return to the regular workplace all at once, but instead “phases in” to a more regular routine? DHS has indicated that remote employees covered by the rule are temporarily exempt from the normal Form I-9 in-person inspection requirements “until they undertake non-remote work on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” This does suggest that an employer’s obligation to do the physical inspection does not commence simply because the employee works non-remotely a single time or on isolated occasions.
Employers can do the in-person document inspections before they are legally required. The DHS has stated that the flexibilities “do not preclude employers from commencing, in their discretion, the in-person verification of identity and work authorization documentation” for employees initially verified remotely under the rule. In addition, unless the flexibility rule is extended again, it will expire on August 31, 2021. Employers will then have three days after that to complete the physical document inspections for every employee who was initially verified remotely, regardless of whether that employee is still working exclusively on a remote basis.
For this reason, employers who have taken advantage of the flexibility rule to verify their remote employees are encouraged to develop a plan now to make sure that those employees’ documents are physically inspected on a timely basis and that their Form I-9s are updated as required.
Check out additional Form I-9 guidance in the Federal Updates section of the newsletter.
Previous Updates
The short answer is yes. The Equal Employment Opportunity Commission (EEOC) has indicated in their guidance that it is generally permissible for employers to ask employees about COVID-19 vaccination status.
There may be reasons why employers want or need to know which employees have been vaccinated. For example, to aid in return to the office from remote work planning or to administer a leave program for vaccination. Employers are permitted to ask employees if they have been vaccinated and to ask employees for documentation. Most vaccine providers provide documentation relating to the shot, and this should be readily available to the employee.
One area of caution, however: employers should avoid digging too deep into other health inquiries to not run into conflict with other employment laws relating to discrimination and disability. For example, if an employee states their health provider has instructed them against getting vaccinated, management should not ask why the employee cannot receive the vaccine or ask questions regarding the employee’s underlying health condition.
Likewise, the employer should remind employees not to provide vaccination documentation that contains the vaccine recipient’s personal medical information. Once the employee provides the documentation, it should be stored in a secure location, separate and apart from the employee file, similar to other medical records.
While you may ask employees if they have been vaccinated, asking about why they have not been vaccinated may elicit information about medical status so you should only ask that question if it is “job-related and consistent with business necessity”. Per the EEOC, you meet that standard if you have a reasonable belief, based on objective evidence, that an employee who is not vaccinated would pose a direct threat to the health and safety of others or themselves. This is a tough hurdle to clear.
Decide if you need to know workers’ vaccination status and which company representative is responsible for this request for information. As we have seen with other issues related to COVID-19, many vaccination scenarios will require consideration of various factors. Reach out to your FrankAdvice HR Consultant for guidance as needed.
