The effects of the COVID-19 pandemic are far reaching. The labor shortage plaguing America has been one of the most publicized. Why is it so difficult for some employers to find employees? The 2020 United States Census offers possible reasons: an aging population, decreased fertility rates, and low rates of immigration.

The 7.4% population increase reported in the 2020 Census is one the smallest increases ever – second only to the one following the Great Depression. While pro-family policies can help to increase family size, according to a policy expert, “immigration is a much more reliable driver of population growth.” Studies have shown that immigration provides a younger workforce, the entrepreneurial workers, and the skilled employees needed for essential industries such as healthcare, construction, agriculture, and food processing.

According to the U.S. Chamber of Commerce, “a worker shortage is holding back job creators across the country.” It is also leading to “supply-chain bottlenecks and higher prices for businesses and consumers.” The Census had forecasted a 1.4 million increase in immigrants from 2017 to 2019. Instead, the figure was much smaller – 400,000. That is one reason the Chamber and others are lobbying to double the number of H-1B and H-2B visas available, to ease the labor shortage and all the economy to surge.

The labor shortages are being felt perhaps most acutely in areas of the country that had, before the COVID-19 pandemic, experienced great population and economic growth, such as Northwest Arkansas and other non-coastal areas. In many of these areas, economic booms have been fueled by immigrants. Without immigrants, these areas could experience zero or negative population growth, a smaller workforce, and an aging economy.

The Biden Administration has expressed time and time again that it is committed to implementing long-term immigration reform. The fact is, we are losing immigrant entrepreneurs and talent to other nations, and our longevity in an increasingly competitive world is tied to an immigration policy that makes sense in the 21st century economy.

Congresswoman Zoe Lofgren recently introduced a bill that creates a new nonimmigrant visa for startup founders. This bill creates a direct path to a green card if the start-up entity meets certain benchmarks that demonstrate the founder has a proven track record of success in business development, then the founder can apply for and receive lawful permanent residence. The bill will also create nonimmigrant visa categories for managerial and executive employees of the startup entity. Common sense policies, such as Lofgren’s bill, will ensure America remains the primary destination for the world’s best and brightest.

If you have questions about the Biden Administration’s proposals for business immigration, Jackson Lewis attorneys are available to assist you.

Cities step up their efforts to combat the COVID-19 Delta variant. New York City, New Orleans, and San Francisco have all announced requirements for certain persons to produce evidence of COVID vaccination status in order to patronize or work indoors at certain establishments. Adding to an already complex patchwork of COVID-related regulation – screening, social distancing, contact tracing, paid-time off, record keeping, etc. – certain businesses will need to absorb another layer. But while doing so, they should avoid creating new data privacy and security risks.

In general, each of the cities requires businesses in certain industries such as food services (restaurants, bars), fitness, and entertainment (hotels, casinos, music halls) to require employees, patrons, customers, contractors, and others to provide proof of vaccination to go indoors at these establishments. In some cases, proof is required even for certain outdoor activities. For example, in New Orleans, the requirement applies to outdoor events of more than 500 people if total attendance is more than 50% of the outdoor venue’s capacity.

There are several exceptions to these requirements. For example:

  • Persons under 12 do not have to provide proof of vaccination.
  • In New Orleans, a negative PCR test within 72 hours of access can be provided in lieu of vaccination proof. This is not permitted in San Francisco, which requires proof of full vaccination. See FAQs for COVID-19 Health Order C19-07y. NYC requires proof of at least one dose of the COVID-19 vaccination.
  • San Francisco businesses may allow patrons wearing a well-fitted mask to use a restroom indoors without vaccination verification. There is a similar exception in NYC.
  • If an individual in NYC is unable to show proof of vaccination due to a disability, the business must engage in a cooperative dialogue to see if a reasonable accommodation is possible. Reasonable accommodation is not required if the individual would create a direct threat to other customers or employees, or impose an undue hardship on the business. A similar approach is required for employees.

A significant issue for covered businesses, however, is whether they must collect any additional information in order to comply, and how should that information be safeguarded, retained, and/or disclosed, as necessary. Businesses will want to have sufficient proof that they have complied to avoid an enforcement action. In New York City, when enforcement begins on September 13, 2021, noncompliant establishments may be subject to a fine of $1,000, or more for repeated violations. But this does not mean they need to collect sensitive personal information.

The cities provide several ways for individuals to communicate proof of COVID vaccination.

  • In New Orleans, individuals can use the LA Wallet app; an original, digital photograph, or photocopy of CDC vaccination cards (both sides); or an official vaccine record issued by another state, foreign nation or the World Health Organization.
  • In San Francisco, one can show their CDC Vaccination Record Card (CRC), an image of the card saved to one’s smartphones, a digital COVID-19 vaccine record issued by the State of California, or an approved private app.
  • In NYC, any of the following could be a Key to NYC: one’s CDC vaccination card, the NYC COVID Safe App, the New York State Excelsior App, and official vaccine record, or a photo or hard copy of an official vaccination record of a vaccine administered outside the U.S.

In NYC, businesses also must check the ID of each person required to show proof of vaccination who appears to be 18 or older to confirm the individual is the same person as listed on the proof of vaccination. The ID must contain either the person’s name and picture, or name and date of birth. However, ID checks are not required for individuals that can be matched against information the business already maintains, such as employees.

Do I need to check other identification besides proof of vaccination?

Yes. Identification bearing the same identifying information as the proof of vaccination must also be displayed. (underline added)

See NYC’s Key to NYC FAQs. San Francisco has a similar requirement. See San Francisco FAQs (“Businesses subject to this new requirement must cross-check proof of vaccination against each patron’s photo identification.”)

Some of these methods raise privacy and data security issues for individuals, especially for those choosing to use apps. Pennsylvania is just one state reeling from a data breach involving a COVID app that exposed medical information of thousands of its citizens. But there are significant questions for businesses – what information do they have to collect, if any, and what steps should they take to process and safeguard that information.

NYC’s Key to NYC FAQs provides:

Who must display proof of vaccination?

Employees, patrons, interns, contractors, and volunteers at Key to NYC establishments must display proof of vaccination. Businesses may keep a record of people who have previously provided proof of vaccination, rather than require the proof be displayed every time the person enters the establishment. (underline added)…

What documents do I need to maintain?

You must have a written record that describes how you will verify proof of vaccination for staff and patrons. The record must be on site and available for inspection.

Based on the above, covered NYC businesses are not required to collect information from individuals about their vaccination status. They only need to document how they will verify proof. (NYC provides a sample written protocol) The guidance suggests, however, that businesses could maintain a record of persons who already confirmed vaccination status for ease of administration. But, doing so arguably would create confidential personal information.

New Orleans and San Francisco also do not require businesses to collect proof of vaccination information, although businesses in San Francisco should assess whether the California Consumer Privacy Act (CCPA), as amended, applies and whether additional compliance measures should be implemented.

So, the good news is that while there are some additional compliance requirements in these cities concerning COVID, covered businesses should not have to collect personal information from customers or employees in most cases to meet these requirements. When implementing these measures, businesses should consider advising employees to avoid collecting personal information. Of course, in cases where an employee or patron seeks a reasonable accommodation, the business may need additional information to process that request. In that case, there should be procedures in place to minimize the information needed, to safeguard what is collected, and to limit disclosure of what is retained.

Puerto Rico Governor Pedro R. Pierluisi has expanded mandatory COVID-19 vaccination to additional private industries effective August 30, 2021. Under Executive Order 2021-064 (EO), all beauty salons, barber shops, aesthetics salons, spas, gyms, childcare centers, supermarkets, grocery stores (including stores authorized by the WIC Program), casinos, and gas station stores must require and ensure that every person or employee (regardless of their functions) that physically works at the location is duly inoculated with a vaccine authorized by the FDA for the COVID-19 emergency. Read more.

One of the themes of this year’s USCIS Ombudsman Annual Report is that the agency has been through “a year like no other.” USCIS faced “unprecedented challenges.” With the COVID-19 pandemic came temporary office closures, reduced capacity, and budget cuts. This led to previously unseen levels of backlogs and deepening financial problems, according to the report.

The staff of the USCIS Ombudsman fields requests for help (as an avenue of last resort), is a force multiplier in disseminating immigration information, and gives recommendations to the USCIS about ways to improve services.

According to the report, USCIS made changes to adapt to COVID-19 to increase efficiency that may well continue: expansion of electronic filing and processing capabilities, increased outreach to stakeholders, and improved coordination between USCIS and other government agencies.

The report focused on the need for USCIS to speed up its transition to a digital environment. Initiated 15 years ago, the transition has been slow. As a result, during the pandemic, employees had problems accessing and returning paper files, and the lack of product lines that could be fully processed electronically added to the backlogs.

Another major issue that was exacerbated by COVID-19 is USCIS’ financial insecurity. Because the agency depends solely upon fees for revenue, the resources available to it can be unpredictable. During the COVID-19 pandemic, when the number of filings dropped, major furloughs were threatened. USCIS managed to avoid furloughs by instituting other budget reductions. USCIS used premium processing fees for operations (generally, those fees must be set aside for the digital environment project). Congress passed legislation that would allow USCIS to add more types of cases to premium processing (including I-765 Applications for Employment Authorization). The agency has not instituted those because it does not yet have the staff to accommodate the timelines. While it may take years for USCIS to re-achieve full staffing (after a hiring freeze), the report noted that more premium processing eligibility can be expected.

Moving forward, the Ombudsman recommended USCIS continue some of its pandemic policies:

  • Expansion of remote work, prioritization of online filing, and expansion of the digital environment project
  • Generous interview waiver policies
  • Drive-thru naturalization oaths
  • Reuse of biometrics
  • Remote appearances of attorneys and other representatives
  • Creation of more e-tools
  • More public engagement

Jackson Lewis attorneys will continue to monitor and report developments at USCIS. Please contact us with any questions.

In a tweet on August 20, 2021, the Department of Homeland Security announced that:

“To minimize the spread of COVID19, including the Delta variant, the United States is extending restrictions on non-essential travel at our land and ferry crossing with Canada and Mexico through September 21, while continuing to ensure the flow of essential trade and travel.”

The closure on the United States side continues although Canada has opened its border to fully vaccinated American citizens and green card holders and hopes to open the border to other foreign nationals by September 7, 2021.

If you have questions about these restrictions, please reach out to your Jackson Lewis attorney.

E-Verify is moving toward tougher enforcement, which can result in a temporary termination from participation in the E-Verify program.

Early in the COVID-19 pandemic, E-Verify relaxed some of its standards regarding Tentative Nonconfirmation (TNCs). But, by November 2020, E-Verify stopped allowing extensions and began enforcing its usual timing requirements.

Employers receiving a TNC must notify the affected employee by providing the Further Action Notice explaining they must contact the appropriate government agency within 10 federal government workdays. If the employee does not respond or decides to “not contest” the TNC, the employer must note this choice in E-Verify by closing the case within 10 federal government workdays. When TNC cases remain open in E-Verify for more than 10 federal government workdays, it may be that the employer is not acting in accordance with TNC requirements. The government has stated that such failures may be considered policy violations that can lead to compliance action, up to and including termination of the employer’s E-Verify account.

Employers who have TNCs that have remained open for more than the 10 days have received notifications from E-Verify asking them to take action to resolve the open TNCs and reminding the employers of the possible consequences of non-compliance. Recent indications are that E-Verify may cut off employer access to E-Verify after 30 days if the government does not see sufficient follow up.

For employers who are required to use E-Verify under federal law (such as federal contractors and sub-contractors) or under state law or employers who use E-Verify primarily to provide STEM OPT, termination of their E-Verify accounts could have significant repercussions.

Jackson Lewis attorneys continue to monitor the situation. For advice on how to respond to TNCs or a notice from E-Verify regarding possible TNC non-compliance, Jackson Lewis attorneys are available to assist.

The Occupational Safety and Health Administration (OSHA) updated its COVID-19 guidance for non-healthcare employers, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, on August 13, 2021. Read more.

A Pennsylvania court recently addressed whether a deponent could be compelled to remove a face mask during his deposition after the deponent refused, citing health concerns.  After rescheduling the deposition once, plaintiff’s counsel asked the Court to order the deponent to testify maskless given that he would be doing so alone in a room with an unmanned camera taping him.

Judge Charles H. Bradford in the Court of Common Pleas of Lebanon County, Pennsylvania compelled the deponent to remove his mask, finding the refusal unreasonable given the minimal risks of COVID-19.  The case is Espinosa v. Luthercare, et al., Case No. 2019-02130 (Pennsylvania Court of Common Pleas, Lebanon County, July 28, 2021).

Emphasizing that finders of fact must be able to assess the credibility of testifying witnesses, Judge Bradford noted that one of the key tools to doing so is the ability to evaluate the facial expressions of witnesses.  Judge Bradford held “sometimes, facial expressions that accompany verbal testimony are of critical importance in assessing whether somebody is unsure, or perhaps even lying.”  On balance, affording finders of fact the ability to view testifying witnesses’ facial expressions outweighs concerns of COVID-19 exposure, especially when other preventative measures are taken.

In light of the ongoing pandemic, courts continue to take protective measures within reason, striking a balance between safety and traditional practices.  And while courts permit parties to think creatively to develop balanced solutions, wearing a mask while testifying alone in a room at a video-deposition serves no reasonable medical purpose and will not suffice.

If you have any questions regarding mask requirements in the workplace or during civil litigation, or any other questions regarding employment law or lawsuits, please reach out to the attorneys at Jackson Lewis P.C.

On August 12, 2021, the San Francisco Department of Public Health (SDPH) issued a revised order mandating that the following businesses require both patrons, aged 12 and older, and staff to provide proof of full vaccination:

  • Operators or hosts of establishments or events where food or drink is served indoors, including but not limited to, dining establishments, bars, clubs, theaters, and entertainment venues.
  • Gyms, recreation facilities, yoga studios, dance studios, other fitness establishments, where patrons engage in cardiovascular, aerobic, strength training or other exercise involving elevated breathing.

Further, under the Order all businesses and governmental entities are urged to consider moving operations or activities outdoors, if feasible, and to the extent allowed by local law and permitting requirements.

Individuals who enter or work in a covered business on an intermittent or occasional basis for short periods of time (e.g. individuals who deliver goods or packages) are not required to provide proof of vaccination.

Fitness establishments and activities that are part of a K-12 school or operate as a program for children and youth are covered by a separate sector-specific directive (available at on the SFDPH webpage).

In addition, the new requirements for both patrons and staff are subject to any applicable requirements of federal, state, or local laws, requiring accommodations.

Acceptable proof of vaccination includes:

  • The CDC vaccination card (physical, digital, or picture of the card)
  • Documentation from a healthcare provider
  • A personal digital COVID-19 vaccine record issued by the State of California or by an approved private company.

Businesses must crosscheck proof of vaccination against each patron’s photo identification.

Written self-attestation of vaccination status is not an acceptable form of proof of vaccination under the Order.

Businesses covered by the new vaccination mandate must implement verification for patrons as soon as possible, but no later than August 20, 2021.

Businesses covered by the mandate are also required to use their “best efforts” to ascertain the vaccination status of all staff who routinely work onsite by August 20, 2021. Moreover, covered businesses must as soon as possible but no later than October 13, 2021, ensure that all staff who routinely work onsite provide proof that they are fully vaccinated before entering or working in any indoor portion of the facility.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

If you have questions regarding compliance with the San Francisco Department of Public Health Order or related workplace COVID-19 requirements, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.

A week after issuing the first in the nation order mandating all healthcare workers to be vaccinated against COVID-19, on August 11, 2021, the state of California issued an order mandating either vaccination or regular testing for all workers of schools throughout the state.

The order issued by the California Department of Public Health (CDPH), applies to public and private schools serving students in transitional kindergarten through grade 12. Home schools, childcare, and higher education are not included in the order.

Covered schools must verify the vaccination status of all workers, following the CDPH guidance for vaccine records. Under this guidance only the following may be used as proof of vaccination:

  • COVID-19 Vaccination Record Card (issued by the Department of Health and Human Services Centers for Disease Control & Prevention or WHO Yellow Card) which includes the name of the person vaccinated, type of vaccine provided, and date the last dose was administered);
  • a photo of a Vaccination Record Card as a separate document;
  • a photo of the client’s Vaccination Record Card stored on a phone or electronic device;
  • documentation of COVID-19 vaccination from a health care provider;
  • a digital record that includes a QR code that when scanned by a SMART Health Card reader displays to the reader client name, date of birth, vaccine dates, and vaccine type; or
  • documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.

Schools are required to make a plan for tracking verified worker vaccination status and have records of vaccination verification available to provide to the local health jurisdiction for purposes of case investigation.

Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, must be considered unvaccinated.

The order also mandates regular COVID-19 testing for unvaccinated workers. Unvaccinated workers must be tested at least once weekly with either PCR testing or antigen testing.

Unvaccinated or incompletely vaccinated workers must also observe all other infection control requirements and are not exempted from the testing requirement even if they have a medical contraindication to vaccination.

Schools with workers required to undergo COVID-19 testing should have a plan in place for tracking test results and conducting workplace contact tracing and must report results to local public health departments.

The order became effective on August 12, 2021. However, covered facilities have until October 15, 2021, to be in full compliance with the requirements.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

If you have questions regarding compliance with the CDPH order or related workplace COVID-19 requirements, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.