Extending the Flex: I-9 Rule on Remote Employees Allowed to ContinueThe U.S. Department of Homeland Security (DHS) recently issued updated guidance extending the Form I-9 flexibility rule that temporarily relaxes the document inspection requirements for employers operating remotely.

Under this 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. However, as we explained in a previous post, 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 15 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.” While this does not provide a bright-line test, it 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.

That said, employers can certainly get ahead of the curve and do the in-person document inspections before they are legally required. In fact, DHS has affirmatively 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 keep these obligations in mind and 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 update as required.

Here We Go Again? DOL Secretary Walsh Discusses Raising Overtime Exemption Salary ThresholdYou may have missed it, but Secretary of Labor Marty Walsh perked up some ears last week when he discussed possibly raising the FLSA salary threshold for certain exempt employees.  In testimony before a Congressional committee, Secretary Walsh stated that the current amount, $35,568, is “definitely” too low and hinted that his department may seek an increase.

What Is the Threshold?

Under the FLSA, workers who make under the threshold cannot be qualified as exempt under the executive, administrative and professional exemptions and must be paid time and a half for every hour they work over 40 hours in a week. Under current regulations, if a worker makes under $684 a week (roughly just over $35,000 a year), even if they meet the other requirements for the exemption, they must be paid overtime.

Didn’t We Just Do This?

Some may remember that raising this threshold garnered a good bit of attention at the end of the Obama administration and throughout the Trump years. The threshold had last been changed in 2004 when it was raised to $23,660. President Obama’s staff proposed a raise of over $20,000, but litigation and fights over the proposed rule stymied any change. In 2019, Trump’s DOL ended up with a rule raising the limit to $35,568. During this process, there was a lot of discussion about why the standard hadn’t changed regularly along with changes in salaries and the cost of living.

What Does Walsh Want?

While Secretary Walsh didn’t specifically give a number where he believes the threshold should be, he did state in his committee testimony that he believes the current level is not high enough. This comment is notable in relation to a recent letter from some House members who are proposing that the level be raised to $80,000 per year and should be regularly reviewed. While there is no proposed rule to change it at this time, this may indicate some sort of initiative in the near future.

Do Employers Need to Do Anything Right Now?

Employers should continue to follow the current rule that has the threshold at $35,568 per year. If you have employees that make below that threshold, they cannot be classified as exempt and need to be paid hourly. As we typically encourage, a regular self-audit of your payroll is a good idea to make sure that all your employees are properly classified. And watch this space for any future updates to the threshold.

Helpful Guidance Comes to Those Who Wait: OSHA Issues Long-Awaited COVID-19 Safety RuleAfter the CDC updated its mask guidance, we have all be wondering: Can we eliminate our mask and social distancing requirements for vaccinated employees? Can we ask employees if they have been vaccinated? Can we hold meetings and social gatherings in person again? While we gave you options and best practices in a recent post, we have new information from the DOL in the form of an Emergency Temporary Standard (ETS).

OSHA has finally issued its widely anticipated emergency rule that sets workplace safety parameters for employers in the healthcare sector and makes suggestions for unvaccinated employees in other settings. The guidance comes complete with a flow chart to help you determine if your workplace is covered by the ETS and a sample employee questionnaire to help covered employers screen employees before each work day. While the guidance is targeted toward protecting healthcare workers from COVID-19, it contains some voluntary guidelines for employers outside the healthcare industry to protect unvaccinated workers with a special emphasis on the manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing industries.

Healthcare Industry Specifics

The ETS requires employers in the healthcare sector (i.e., hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, ambulatory care settings) to conduct a hazard assessment and have a written plan to mitigate the spread of COVID-19 for workers who are at a heightened risk of contracting the virus as they provide essential healthcare services to the public. Additionally, covered employers must maintain social distancing protocols or implement barriers, make sure that patients are properly screened for virus symptoms, and give workers paid time off to get vaccinated and to recover from vaccine side effects. The ETS includes a carve-out for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are not permitted to enter. The ETS exempts fully vaccinated workers from wearing a mask and social distancing when in areas where there is no reasonable expectation that a person with COVID-19 will be present.

The ETS is effective immediately upon publication, and employers must comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA has indicated it will use discretion to avoid penalizing employers who are making a good-faith effort to comply.

Non-Healthcare Specific Guidelines

OSHA also issued voluntary guidelines for employers that operate outside of the healthcare context to protect unvaccinated workers who (like healthcare workers) are at a higher risk of being exposed because their work involves close contact. In these higher-risk workplaces where there are unvaccinated or otherwise at-risk workers, OSHA advises employers to:

  • Suggest masks for unvaccinated (or unknown status) employees, customers and other visitors
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing
  • Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in the CDC’s guidance on “Ventilation in Buildings
  • Continue to perform routine cleaning and disinfection
  • Record and report COVID-19 infections and deaths
  • Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards

Takeaways

The DOL and OSHA will continue to update the guidance over time with the goal of keeping up with developments in science and best practices. The guidance makes clear that all employers, regardless of industry, should be encouraging employees to get vaccinated and must continue separating from the workplace all infected people, all people experiencing COVID-19 symptoms, and any unvaccinated people who have had close contact with someone with COVID-19. We will continue bringing you the latest and greatest so that you can stay on top of developments and follow the latest guidance to ensure you are fulfilling your responsibility to provide a safe and healthy workplace.