Beginning 11:59 p.m. on May 26, 2020, travelers from Brazil will be restricted from entering the U.S. under President Donald Trump’s “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus.”

President Trump added Brazil to the list of countries subject to his previous ban because COVID-19 cases have been spiking in that country. Brazil joins the list of 30 other countries that includes the U.K., Ireland, China, Iran, and the 26 Schengen area countries. Foreign nationals who have been in these countries during the preceding 14 days will not be allowed to enter the U.S., unless they are exempted.

The list of exemptions is long. It includes:

  • Lawful permanent residents (LPRs), a.k.a. “Green Card Holders”
  • Spouses of U.S. citizens and LPRs
  • Parents or legal guardians of a U.S. citizen or LPR who is unmarried and under the age of 21
  • Siblings of a U.S. citizen or LPR who is unmarried and under the age of 21
  • Child, foster child, or ward or a U.S. citizen or LPR, or a prospective adoptee seeking to enter the U.S. in IR-4 or IH-4 classifications
  • Aliens traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the coronavirus
  • Aliens traveling as a nonimmigrant pursuant to crew member status (C-1, D, or C-1/D) or any alien otherwise traveling to the U.S. as air or sea crew
  • Aliens seeking entry or transiting in the following statuses: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 [as an employee of TECRO or TECO (Taipei Economic or Cultural Representative Office) or the employee’s immediate family members], G-1, G-2, G-3, G-4, NATO-1 through NATP-4, or NATO-6 status
  • Aliens whose travel falls within Section 11 of the United Nationals Headquarters Agreement
  • Members of the U.S. Armed Forces and their spouses and children
  • Any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the coronavirus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee
  • Any alien whose entry would further important U.S. law enforcement objectives, as determined by the Secretaries of State or Homeland Security or their respective designees, based on a recommendation of the Attorney General or his designee
  • Any alien whose entry would be in the national interest, as determined by the Secretaries of State or Homeland Security or their designees

The ban also does not affect eligibility for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

While these bans have been advertised as temporary, none of them have been terminated to date.

If you have questions about the restrictions and exemptions or the COVID-19 travel restrictions at the Northern and Southern borders, please reach out to your Jackson Lewis attorney. We will continue to provide updates as they become available.

 

Pre-COVID-19, approximately 4.7 million workers were completely remote. Certainly, some industries are more comfortable with the technology necessary to support remote work. Now, as millions of Americans work from home, the next shift in the American workplace may be the increase and permanency of employees working from home.

Is your business ready?

These are some considerations:

  • Non-compete agreements: Do your agreements account for the fact that employees are working from home? Consider revising your territorial description to account for this.
  • Family and Medical Leave Act (FMLA) Leave: Do you know that FMLA regulations anticipate a remote workforce and explain how to count employees when determining whether a remote employee is eligible for leave?
  • Americans with Disabilities Act (ADA): Do your job descriptions identify reporting to a job site as an essential function? Is it really an essential function? Has it been during the last few months? Have you considered providing accommodation to employees who work from home?
  • Managing remote employees: Your supervisors likely have received a crash course over the last few months on the differences associated with managing remote employees. Train your managers to guide them on the challenges (g., maintaining productivity, sustaining morale, and upholding discipline) unique to their remote employees.
  • Wage and hour compliance: Do you have a procedure in place for monitoring how much employees are working from home? When do they start and stop working? Your obligation to track time for non-exempt workers exists even if they are remote.
  • Data security and privacy: Do you issue laptops to remote employees? Make sure to clearly state who can use them and for what purpose while they are in remote employees’ homes. If you allow remote employees to use their personal computers for work, then establish parameters for blending business and personal items on their computers and accessing your network and systems from their personal computers. If your data security procedures were not established with a remote workforce in mind, then it is time to reconsider them.

Look for more information in the coming weeks on each of these topics.

The key to managing remote employees is clear and frequent communication. Employees working together in an office reap the benefits of regular, in-person interactions that reveal a lot about how the workplace or team is functioning. When employees work remotely, these informal touchstones are gone. To compensate, managers of remote employees must engage their teams regularly to understand what is working and, more importantly, what is not.

Managers with remote teams should consider some guidelines, including the following:

  1. Set and Communicate Clear Expectations/Goals: Clear communication of goals is especially important in remote work environments because employees will not be able to gauge their performance against coworkers as easily. Managers must clearly define their expectations and communicate this to the employees they manage. Now, when many remote employees are trying to balance the obligations of home and a lack of available childcare, try to focus on specific goals (g., 10 reports/week) as opposed to activity levels (e.g., 8 hours/day) when possible. However, if a specific activity level is a requirement of the position (e.g., logged in from 9:00 a.m. – 5:00 p.m. to respond to customer inquiries), that needs to be communicated to employees.
  2. Ensure Employees Have the Tools They Need to Succeed: Once goals are set, it is incumbent on managers to ensure their teams have the tools they need to succeed. Technological failures are one of the biggest impediments to remote work success. Managers must ensure their employees are able to access programs and files they need, participate in conferences calls, and so on.
  3. Frequent and Clear Feedback: This is the key to managing remote employees. Managers must devote time to check-in with their employees and touch base regarding how the work is going and whether the employee has the tools they need to succeed. Many companies with workforces that are completely remote require managers to schedule one-on-one meetings with their team members every week to check in regarding work performance. In a non-remote environment, these weekly meetings might be reserved for underperforming employees, but in a remote environment, they provide an important opportunity for managers to touch base with everyone on the team before problems arise. For employees who are struggling, however, these routine check-ins are critical. The best one-on-one meetings occur by videoconference. Managing employees by written communication is an uphill battle because tone and delivery (especially to underperforming employees) is important. If performance goals or deficiencies are discussed during a videoconference, the content of the conversation should be documented in writing by the manager. Employers should also be mindful that recorded meetings between managers and their employees are likely discoverable in future litigation.
  4. Written Communication Skills: When a manager cannot see the employees and their reactions or facial expressions, communication can be easily misinterpreted. Managers who have trouble communicating clearly in writing may improve with some training. Writing should be specific, succinct, organized, and highlight deadlines, if appropriate. Bullet points are a great way to organize. Finally, tone matters. Hard conversations should always be had by videoconference before memorializing them in a written communication. For example, a remote employee should not learn by email that they are being placed on a performance improvement plan.

On May 4th, Governor Newsom issued a new executive order allowing for limited reopening of certain businesses. This initial allowance for re-opening was part of the State’s larger staged plan referred to as the “Resilience Roadmap.” The Governor’s plan identified that the State was in the early part of Stage 2 but set out guidance for counties to seek variances based on criteria set by the California Department of Public Health.

The State’s roadmap indicated that in the early phase of Stage 2, retail (curbside and delivery only), related logistics and manufacturing, office workplaces (where teleworking was not feasible), limited personal services, outdoor museums, childcare, and essential businesses can open with modifications, could open if the counties could meet certain variances.

In conjunction with the State’s roadmap, several counties developed their own reopening roadmaps, including Orange County. Orange County’s guidance, as such, stated that in early Stage 2 the following businesses could open: curb-side retail, manufacturers, and logistics.  It noted that the “Expanded Stage 2 with Attestation” (and specifically noted that none of these were open in Orange County until there was further guidance on facility adaptations from the Governor), included office-based businesses, and noted that telework remains strongly encouraged.

Subsequently, the Governor retracted on some of the requirements of counties, and, as such, allowed the state to progress to a more thorough Stage 2, including the opening of office-based businesses.

At that point in time, Orange County’s roadmap was more stringent than California’s guidance, as it stated that, among others, an office-based business could only open in “Expanded Stage 2 with Attestation,” not in “Early Stage 2 Opening.”

However, the County identified this conflict and, over the weekend, issued new guidance confirming office-based businesses may reopen in the County, where telework is not possible, following applicable guidelines. Office-based businesses will still need to comply with both county and state guidance for reopening.

The State has mandated that all facilities who reopen must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

Jackson Lewis is monitoring state and local guidance and can assist in developing return to work policies and protocols for businesses. Contact a Jackson Lewis attorney if you would like to discuss your business’s return to work plans.

On May 20, 2020, San Diego County was approved for a state variance to move forward and allow additional businesses to reopen. Under the variance, restaurants will be permitted to have customers dine-in, and retail establishments will be permitted to have customers in-store with certain restrictions. San Diego is one of the first larger counties in California to be granted such a variance.

To ensure compliance with state requirements, San Diego businesses need to complete the county’s Safe Reopening Plan. Businesses that have been operating for pickup and delivery will need to update their plans. San Diego has also issued guidance for restaurants regarding dine-in operations.

San Diego County had previously issued a Safe Reopening Plan for retail businesses.  The COVID-19 Safe Onsite Dining Plan for Restaurants and Restaurant Operating Protocol are similar; however, contain restaurant-specific guidelines.

The Dining Plan and Restaurant Operating Protocol include five (5) major measures for dine-in restaurants: employee health, social distancing, measures to increase sanitation and disinfection, education for the dining public, and recommended additional measures.  Except for the last one, all measures are mandatory, so restaurants should thoroughly review both the Dining Plan and the Restaurant Operating Protocol.

All businesses that plan to reopen should review the state checklist for their industry. Moreover, all facilities that are reopening are required by the state to perform a detailed risk assessment and implement a site-specific protection plan. These plans must include the implementation of employee screenings, disinfecting protocols, and physical distancing policies. Businesses are also required to train employees on how to limit the spread of COVID-19, including how to screen themselves and stay home if the employee has symptoms.

Jackson Lewis is monitoring state and local guidance and can assist in developing return to work policies and protocols for businesses. Contact a Jackson Lewis attorney if you would like to discuss your business’s return to work plans.

USCIS has announced that, due to the COVID-19 pandemic, it has suffered a steep decrease in revenue and, without assistance, might run out of funding this summer. The agency has asked Congress for $1.2 billion in emergency relief (as a loan) along with a 10% COVID-19 surcharge (to repay the loan) on top of a proposed, but not yet implemented, fee increase.

USCIS is 96% fee funded. Its last major fee increase was in FY 2017. By late-2019, USCIS proposed another fee increase, stating that without it, the agency would be underfunded by approximately $1.3 billion per year.

The 2019 proposal called for a 21% weighted average increase. Some petitions or applications would see a fee decrease, but others (such as Form I-129 petitions and naturalization petitions) would see substantial increases. For instance, the filing fee alone for an H-1B petition would go from $460 to $560 (a 22% increase). An O petition would increase by 55%, to $715, and an L petition would increase by 77%, to $815. Naturalization application fees would increase by 83%, to $1,170, and, for the first time, DACA renewals and asylum application fees would be imposed. Due to the comments and objections USCIS has received, the proposed increase has remained pending – perhaps until now.

In addition, all of the Trump Administration’s policies enacted to increase the scrutiny given to immigration applications and, ultimately, reduce the level of immigration and naturalization appear to be working. It is reported that there has been a “precipitous drop in applications for green cards, citizenship and other programs ….” Everything from the skyrocketing number of Requests for Evidence (RFEs) and denials, to the furor over the changes in the Public Charge rule, to a 45% rise in processing delays may have convinced some individuals and employers the new uncertainties make it pointless to apply at this time. On top of that, the heightened scrutiny and additional requirements (such as more in-person green card interviews) have forced USCIS to hire more employees that it now is having trouble supporting. In addition, USCIS temporarily suspended all premium processing, thus eliminating a $1,440 fee per petition that must usually provide a good revenue stream.

Jackson Lewis will continue to follow Congress’ reaction and provide updates as they become available. Please contact a Jackson Lewis attorney with any questions.

 

 

The Small Business Administration (SBA) has issued guidance on the forgiveness provisions applicable to loans made under the Paycheck Protection Program (PPP) created by the CARES Act.

The SBA was required to issue guidance on these provisions within 30 days of the enactment of the CARES Act, or no later than April 26, 2020. On May 15, 2020, the SBA finally issued guidance in the form of the PPP Loan Forgiveness Application and InstructionsMore…

The Occupational Safety and Health Administration (OSHA) has published new guidance requiring employers covered by OSHA’s recordkeeping standards to determine whether employees have contracted COVID-19 while at work.

In an effort “to provide certainty to employers and workers,” beginning on May 26, 2020, the agency is requiring all employers to record all COVID-19 cases that:

  • Are confirmed by at least one positive test (as defined by the CDC as a respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19);
  • Are work-related; and
  • Cause employees to seek medical treatment beyond first aid, result in lost work days or restricted duty or cause loss of consciousness or death.

In an earlier guidance, published on April 10, 2020, the agency recognized the difficulty of determining whether a COVID-19 case was “work-related” due to potential employee infections at home, in the community, or elsewhere. Deciding that employers needed to devote their attention to protective measures (such as disinfecting worksites and implementing proper safety controls), OSHA limited the requirement to make work-related determinations to employers in healthcare industries, emergency response organizations, and correctional institutions. Under that guidance, most employers were exempt from making work-related determinations unless there was reasonably objective evidence reasonably available to the employer of a work-related case. The April 10 guidance will be rescinded on May 26, 2020 and the May 19, 2020 guidance will take effect.

Accordingly, most employers must determine whether employees contracted COVID-19 at work when completing OSHA 300 Logs listing injuries and illnesses. Such logs have become increasingly relevant in recent years because OSHA uses employers’ self-reported data in the logs to publish each workplace’s injury and illness rates on the agency’s website. In accordance with existing regulations, the only employers that are exempt from maintaining such injury and illness records are those with 10 or fewer employees or certain employers in low-hazard industries.

OSHA has directed compliance officers enforcing the new rule to consider a variety of factors in determining compliance, such as:

(1) The reasonableness of the employer’s investigation into work-relatedness;

OSHA has indicated that a reasonable investigation would include the following:

  • Asking the employee how he/she believes they contracted COVID-19;
  • Discussing, to extent feasible, the employee’s out of work activities; and
  • Reviewing the employee’s work environment to consider other related cases.

(2) The evidence available to the employer;

Determinations of whether a case is work-related should be based on evidence reasonably available to the employer at the time the determination is made, but can be changed later when the employer later learns more information that might impact the work-relatedness determination.

(3) And evidence that a COVID-19 illness was contracted at work.

OSHA’s guidance outlines some evidence that may weigh in favor of or against work-relatedness, including:

  • Whether there are several cases among workers who are work closely together and there is no alternative explanation (likely work-related);
  • Whether an employee contracted COVID-19 shortly after lengthy close exposure to a customer or coworker who has is confirmed positive and there is no alternative explanation (likely work-related);
  • Whether the employee’s job duties have them in frequent, close exposure to the general public in an area with ongoing community transmission and there is no alternative explanation (likely work-related);
  • Whether the employee is the only worker to contract COVID-19 and the employee’s job duties do not include frequent contact with the public, regardless of community transmission (likely not work-related); and
  • Whether the employee, outside of work, has close and frequent contact with family, significant other, friends, (who are not co-workers) who have COVID-19 (likely not work-related).

Because OSHA considers COVID-19 a respiratory illness, it should be coded on the 300 Log as such and if an employee voluntarily requests that their name not be entered into the OSHA 300 Log, the employer must not publish the employee’s name.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are available to assist employers with workplace health matters and to answer any questions.

 

Following in the footsteps of the cities of Los Angeles, Los Angeles County, San Francisco, and San Jose, the City of Oakland adopted a new supplemental emergency sick leave ordinance on May 18, 2020.  The ordinance takes effect immediately and is intended to apply to employers who are not covered by the Families First Coronavirus Response Act (“FFCRA”).

The ordinance requires employers to provide 80 hours of Emergency Sick Leave (“ESL”) to full-time employees.  Part-time employees must be provided an amount of ESL equal to the average number of hours they work in a two-week period.

Employers do not have to provide the ESL if:

  1. The employer had less than 50 employees  February 3, 2020, through March 4, 2020. However, some janitorial and franchisee employers are covered even if they had less than 50 employees during that time frame.
  2. The employer, after February 3, 2020, provided employees with the ability to accrue at least 160 hours of paid personal time but only if the employee has immediate access to at least 80 hours of that leave. If the employee’s balance under that personal plan is less than 80 hours, the employer must provide additional personal time sufficient to bring the employee’s balance to 80 hours.
  3. The employer immediately allows employees to use 80 hours of paid personal time off for the same reasons as ESL can be used where the employer was not obligated to provide that personal time by a collective bargaining agreement, contract, or policy.

Employees may use ESL for the following reasons when the employee is unable to work or telework:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  5. The employee is caring for the employee’s child because the child’s school or place of care has closed due to COVID-19 precautions;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

In addition, ESL may be used when the employee:

  1. Is at least 65 years old;
  2. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
  4. Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Like FFCRA and similar ordinances, payment for leave is capped at a maximum of $511 per day, or $5,110 in total.

Upon the City publishing an ESL notice, employers are required to post the notice, make it available on an intranet, or otherwise provide it to all employees.

In an unusual twist, the ordinance also requires employees who are laid off to be paid for their unused  Paid Sick Leave upon termination.

The ordinance expires on December 31, 2020, unless extended.

Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

As businesses begin to reopen after shutdowns to help stop the spread of the COVID-19 pandemic, employers should anticipate heightened scrutiny by USCIS, ICE, and the Departments of Labor and Justice regarding wage and hour and immigration requirements.

The current surge in worksite enforcement is expected to result in as many as 10,000 I-9 audits in fiscal year 2020. In addition, civil audits are on the upswing, leading to criminal investigations and criminal arrests for employing undocumented workers. Moreover, high unemployment and mounting political tensions due to the COVID-19 pandemic likely will lead to even greater government focus on employers’ hiring practices.

Regardless of whether your company employs foreign nationals, all employers should audit their I-9s now. Basic steps include:

  • Determining if you need to do new I-9s for employees who have been furloughed or terminated.
  • Reviewing documents initially presented and update I-9s within three business days if your company reviewed I-9s remotely during the shutdown.
  • Checking if some returning workers need to have their I-9s reverified.
  • If your company is in the midst of an audit, readying for ICE to move quickly despite COVID-19 extensions.

Employers with non-immigrant workers have other concerns as well. It is a good time to:

  • Audit H-1B Public Access Files to ensure you have included proper notifications regarding worksite changes.
  • Check on any changes in salary to ensure you are still meeting prevailing wage and actual wage requirements.
  • Check if any amendments to petitions are required because of post-COVID-19 decisions regarding the terms and conditions of employment.
  • If any employees on H-1B visas are being terminated, make sure to follow regulations regarding withdrawing petitions and repatriation.
  • Prepare for possible worksite visits from USCIS.
  • Strategize on how to bring foreign nationals into the country or back into the country in light of travel and entry bans, as well as consular closings.
  • Review current green card sponsorship to determine whether cases are still viable given unemployment numbers in your industry.
  • Refine green card sponsorship policies and agreements in light of the new normal.

Please contact a Jackson Lewis attorney with any questions about workplace issues.