There may be potential discrepancies as COVID-19 regulatory changes continue to occur. If you believe there may be a discrepancy affecting you or your business, you should contact your local government and/or competent local legal counsel for further advice.
Federal Regulatory Updates
- EEOC Clarifies Impact of Coronavirus on American Disabilities Act and the Rehabilitation Act
- U.S. Citizenship and Immigration Services Temporarily Suspends Premium Processing for I-129 and I-140 Forms
- 2020 Tax Deadlines Extended from April 15 to July 15
- Department of Homeland Security Temporarily Relaxes I-9 Review Requirements
- Travel Restrictions Due to Coronavirus
- Department of Labor Releases Guidance on COVID-19 Related FLSA and FMLA
- Additional Guidance from the Department of Labor on Unemployment Eligibility
- High-Deductible Insurance Plans to Cover Costs of COVID-19 Testing and Treatment Before Patients Reach Deductible
- President Trump Issues Declaration of National Emergency for COVID-19
Who: All employers
When: Effective Immediately
The Equal Employment Opportunity Commission (EEOC) issued clarifying guidance on how employers can navigate the issue of COVID-19 in the workplace with their employees. The guidance provided is consistent with the Commission’s previous guidance during other pandemics, including H1N1.
Without violating the American Disabilities Act or the Rehabilitation Act, employers can:
- Ask workers if they are feeling any COVID-19 symptoms, as long as the individual’s information is kept as a confidential medical record.
- Take employees’ body temperature (be advised that there may be additional state privacy regulations that are also in play when taking employees’ temperatures).
- Instruct employees who experience symptoms of COVID-19 to go home or to stay home.
- Require returning employees to obtain and provide a doctor’s note (or equivalent documentation, such as an email certification) that states they are fit to return to work.
- Screen all job candidates for COVID-19 symptoms after making a conditional job offer, provided that the practice is consistent with all incoming employees for the same type of job.
- Withdraw a job offer where a candidate has symptoms of or tests positive for COVID-19, as long as the job states it must start immediately.
- For employees that aren’t yet working from home regularly check in with them about their health.
- Remind employees that if they are experiencing any symptoms consistent with COVID-19, they should stay home.
- Review your current job offers and revise your onboarding status based to include consistent screening for COVID-19 symptoms.
U.S. Citizenship and Immigration Services Temporarily Suspends Premium Processing for I-129 and I-140 Forms
Who: Employers seeking petitions for employees using I-129 and I-140 petitions
When: March 20, 2020
The U.S. Citizenship and Immigration Services (USCIS) has temporarily stopped processing new requests for premium processing Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. USCIS will continue to process previously accepted I-907 Request for Premium Processing forms. It will refund the filing fee ($1,440) if it doesn’t fulfill a premium processing request for a previously filed Form I-129 or Form I-140 within the 15-calendar-day period.
The visa categories affected are all those included in the I-129 and I-140 premium process petitions: E-1, EB-1, EB-2, EB-3, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1 O-2, P-1, P-1S, P-2, P-2S, P-3S, Q-1, R-1, TN-1, and TN-2.
This temporary suspension won’t affect the H-1B cap lottery, and selected registrants should be notified by March 31. However, in the absence of the premium processing, petitioners likely won’t receive petition decisions until late May at the earliest. Companies using the premium processing petition won’t be able to easily communicate with USCIS representatives about their case status or make corrections.
For employees whose status may expire or be impacted by this change, they are eligible for a 240-day extension and shouldn’t be affected by the temporary premium processing suspension.
Review and identify any premium processing petitions and inform the affected workers that the premium processing isn’t currently available.
Who: All individuals
When: July 15, 2020
The U.S. Treasury and Internal Revenue Service have deferred the federal income tax due date from April 15, 2020, to July 15, 2020, without incurring interest, penalty, or an additional tax based on a failure to pay. This change impacts the 2019 taxable year’s federal income tax payments and 2020 taxable year’s federal estimated income tax payments of up to $10 Million for a C corporation or a group of C corporations, and up to $1 Million in an individual’s case.
The deferral doesn’t impact state and local tax deadlines or federal non-income tax deadlines.
- If you are filing as a C corporation or a group of C corporations, review your current tax filing status and be sure to file on time.
- Research whether your state income tax filing has changed or if you must still meet the original deadline.
Who: Employer who are operating remote workforces
When: Effective Immediately until May 19, 2020, or within 3 business days after the national emergency ends
Employers who are operating entirely in a remote program temporarily don’t need to review I-9 forms in-person with new workers. Employers are required to review Section 2 of the I-9 form still, whether through video conference, fax, or email, and they will need to make a note of “COVID-19” in the “additional information” field. They must also have copies of the documents within 3 business days. Employers must provide all new employees with their remote onboarding and telework policy.
When this temporary change has ended, all new employees who were onboarded during this time must report to their employer within 3 business days for the in-person verification and employment eligibility documentation. Employers will need to make a note of the date of the document’s physical examination in Section 2.
This temporary change doesn’t apply to any employees who are on-site at the employer’s location. Meaning, the I-9 review requirement still applies to those employees who are physically present at a work location.
- Review your current onboarding practices and adapt them to this temporary change. Ensure that onboarding still includes the review of the I-9 form; physical documents are obtained.
- Communicate with other hiring managers about this change and how to update their current practices.
- Be prepared to communicate with all new employees, to bring their physical documents, when regular operations resume.
Who: All foreign nationals (with limited exceptions), both immigrant and non-immigrant who were physically present in China, Iran, and European countries in the Schengen area as well as the United Kingdom and Ireland during the previous 14 days to enter.
Various travel restrictions from multiple countries into the U.S. has begun:
- March 11, 2020, for Europe
- March 16, 2020, for the United Kingdom and Ireland
Additionally, on March 21, 2020, the U.S. borders to Mexico and Canada except for “essential travel.” This restriction will be in place until April 20, 2020.
What: The United States has issued a ban preventing foreign nationals who have visited high-risk countries from entering the U.S. Foreign nationals who are lawful permanent residents, spouses, parents, or guardians of U.S. citizens or legal permanent residents and U.S. military personnel are exempt from this rule. Other exemptions are also granted for those who have received a government invitation to enter the U.S. for a reason related to the handling of COVID-19.
Essential travel between Canada and Mexico is defined as any U.S. Citizen returning to the states, anyone receiving medical attention or education in the U.S., anyone who is working in the U.S., or providing an emergency response or public health services, anyone engaged in lawful trade, military or government service.
- Ensure all employees are aware of the restrictions and requirements of the ban while it is in effect.
- Assess the impact on any employees currently out of the country on travel and advise them accordingly.
- Draft a policy to address these challenges.
Who: Employers subject to the Family Medical Leave Act (FMLA); Employers subject to the Fair Labor Standards Act (FLSA)
When: March 9, 2020
What: The Department of Labor issued new guidance offering clarity on two vital federal regulations that may be affected during the pandemic COVID-19.
Key points of clarity for FMLA included:
- Leave taken to avoid exposure to COVID-19 is not counted as FMLA
- Eligible employees are only able to take unpaid FMLA leave for their COVID-19 or to care for a family member with COVID-19 only if the infected person suffers complications creating a “serious health condition.”
- The DOL still encourages flexible leave policies if they or a family member contract the virus to slow the spread.
For the FLSA:
- Employers do not need to pay non-exempt employees for hours they do not work, even when due to a business closure due to COVID-19.
- Salaried, exempt staff may be required by an employer to take vacation or paid time off in the case of an office closure from COVID-19. If the exempt employee does not have vacation or PTO available, the employee must still receive full guaranteed salary for a week when work is performed.
- Telework can be encouraged or required for infection control or prevention.
- Non-exempt employees can be asked to work extra hours as long as they are paid minimum wage and overtime for any hours over 40.
Assess current leave policies and Fair Labor Standards Act related policies to ensure alignment with current guidance from the Department of Labor.
Who: Employers affected by COVID-19 related employment issues
When: March 12, 2020
The U.S. Department of Labor provided specific scenarios to help states assess unemployment compensation benefits in light of the challenges faced by employers caused by COVID-19. The guidance included specific information about flexibilities under federal law for states to adjust unemployment insurance programs based on the circumstances of the global pandemic. The guidance notes that states have the option to pay unemployment benefits in cases such as:
- An employer must temporarily cease operations, preventing employees from working due to COVID-19
- When an employee is quarantined and expects to return to work after the quarantine period ends
- If an employee leaves employment to reasonably avoid exposure or infection or to care for an ill family member.
Importantly, the guidance also points out that in cases of COVID-19 related impacts, federal law does not require the employee to resign in order to receive benefits. States may also waive their unemployment waiting periods if they choose to. Finally, the guidance cites the benefits of work sharing or short-term compensation (STC) programs and encourages employers to develop short term compensation plans where STC is available (28 states). STC allows employers to avoid layoffs by reducing work hours for employees while those employees collect partial unemployment payments.
- Understand the state-administered unemployment insurance program, and how the state plans to administer that program in light of the COVID-19 pandemic.
- Inform employees of relevant COVID-19 related policies for unemployment eligibility.
High-Deductible Insurance Plans to Cover Costs of COVID-19 Testing and Treatment Before Patients Reach Deductible
Who: Employers whose employees are enrolled in high-deductible health plans
When: March 11 2020
What: Although now required by the Families First Coronavirus Response Act, the Internal Revenue Service (IRS) initially issued guidance in response to the COVID-19 health emergency that allows designated high-deductible health plans (HDHPs) to cover the costs of testing and treatment for COVID-19 with a smaller deductible or with no deductible at all, and included the use of telehealth services. This flexibility means that COVID-19 related medical care costs can be offered at a low or no cost for insured employees, without impacting minimum deductible and out-of-pocket expense maximums for the employer.
- Contact your HDHP claims administrator or insurer to discuss options for implementation
- Work with the HDHP provider to generate a list of COVID-19 related medical expenses that will be covered by such a change
- Communicate any changes with respect to COVID-19 related medical services to employees to make sure they aren’t discouraged from seeking testing and treatment due to cost
Who: All employers and employees in the United States, especially those whose work relies on Medicare, Medicaid or SCHIP
When: March 13, 2020
Due to the widespread coronavirus, President Trump announced a National State of Emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. This will support states’ requests for federal financial aid related to the pandemic to cover up to 75% of the cost of medical supplies, vaccination, medical tests, and emergency workers.
The Declaration means COVID-19 is considered a “qualified disaster” under the Stafford Act and expands resources that businesses will be able to tap to assist employees who are impacted by the virus.
Employers will have access to additional assistance options to help their employees:
- Direct tax-free assistance: The financial assistance that employers give to workers will be tax-free and not treated as a salary or income. Employers can deduct the amount as a regular business expense. The amount of assistance should be reasonable and not a qualifying expense under the employer’s insurance.
- Employer-sponsored Emergency Funds that are classified as private foundations can be used as assistance in the same way that public charities can normally be used, without negative taxation. There are no requirements for any “pre-approval,” like a grant. If these expenses are properly documented, they would not be considered self-dealing and not taxable.
- Review your current business and employees’ needs and how your business can continue to support them. Work through different scenarios that may or may not require the use of the options the national state of emergency opens up.
- If your business has a private foundation, work with legal counsel to determine if those funds would be of additional help to employees in need of assistance. Prepare your business accordingly and communicate with impacted employees.