ICE has announced it will extend I-9 flexibility until April 30, 2022, due to continuing precautions related to COVID-19.

The guidance remains the same:

  • Employees who work exclusively in a remote setting due to COVID-19 continue to be temporarily exempt from the in-person requirements associated with Form I-9 Employment Eligibility Verification, until they start working at a worksite on a regular, consistent, or predictable basis (or until flexibility is terminated).
  • As before, ICE reiterates that, if employees are physically present at a work location, flexibility does not apply.

Advocates have been encouraging the Department of Homeland Security (DHS) to continue this flexibility indefinitely because, although many employees are returning to worksites, remote work will continue to play an important role in the 21st century workplace.

The ability to conduct Form I-9 verifications remotely allows companies to centralize their I-9 processes so that experienced staff can conduct the reviews, to eliminate the need to hire agents who may not be as experienced to conduct remote verifications, and to make it easier to hire key employees who may work remotely. Moreover, it would eliminate barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9 verification.

Employers should continue to prepare for the possible end of flexibility by:

  • Keeping track of employees who have been verified virtually, when they will be returning to work, and the deadline for in-person verification; and
  • Identifying and training staff to conduct the necessary in-person reviews.

Employers should also review the newly adopted process for verifying employment authorization for individuals with long-pending H-4, E, and L-2 EADs.

Jackson Lewis attorneys are available to assist you in instituting compliant Form I-9 processes and policies.

Cal/OSHA’s ETS is Amended and Extended to April 2022

On December 16, 2021, Cal/OSHA’s Standards Board voted to readopt the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) with several revisions. This vote comes on the heels of the California Department of Public Health (CDPH) issuing a state-wide face-covering requirement for indoor public settings and in the wake of uncertainty about the future of the federal COVID-19 Emergency Temporary Standards (federal ETS). Read more.

California Employers Must Comply with the Cal/OSHA ETS While Uncertainty Continues with Federal ETS

On December 16, 2021, Cal/OSHA’s Standards Board voted to readopt the Cal/OSHA COVID-19 Emergency Temporary Standards (Cal/OSHA ETS) with several revisions. And just a day later the U.S. Court of Appeals for the Sixth Circuit lifted the stay on the federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (federal ETS). The timing of these announcements has created some confusion, with many employers wondering if the two announcements are related. They are not. Read more.

Applicants for Adjustment of Status to Permanent Residence will have more than 60 days after completing their medical examinations to file their Forms I-485 Adjustment of Status applications, USCIS has announced.

Due to COVID-19-related delays, USCIS has temporarily waived the requirement that a civil surgeon sign the Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files a Form I-485. This temporary waiver will be in effect until September 30, 2022, and will help applicants whose I-485 applications were delayed due to the pandemic and who, without the waiver, would have had to schedule and pay for a second medical examination.

This waiver will particularly benefit Afghan nationals who were evacuated under Operation Allies Welcome, many of whom completed their medical examinations more than 60 days before they could submit I-485 applications.

To protect the U.S. public, applicants for Adjustment of Status have long been required to submit a medical examination signed by a Department of Homeland Security-designated civil surgeon proving admissibility on medical grounds. Current medical grounds for inadmissibility include:

  • A communicable disease of public health significance;
  • The failure to show proof of required vaccinations;
  • A physical or mental disorder with associated harmful behavior; and
  • Drug abuse or addiction.

COVID-19 led to this signature flexibility, but it also necessitated the addition of COVID-19 to the list of vaccines that applicants are required to take to avoid an inadmissibility determination. The vaccine record is a part of the standard medical examination and, with limited exceptions, a civil surgeon cannot sign the medical examination report unless the applicant is “fully vaccinated” with one of the acceptable COVID-19 vaccines.

Despite the 60-day waiver, USCIS advises that it is best to have the medical examination as close to the adjustment filing date as possible, because the medical examination will only remain valid for two years. Some applicants who expect that their cases will not be adjudicated within the two-year validity period may, with advice of counsel, choose to submit a Form I-693 medical exam later in the process – either at an interview or in response to a Request for Evidence from USCIS, rather than risk possible invalidation and the need to redo the medical examination.

The new waiver applies to all Forms I-693 that have not been adjudicated, regardless of when the application was submitted or when the Form I-693 was signed.

Jackson Lewis attorneys are available to advise on strategies about medical examinations and the filing of Forms I-485.

Less than 24 hours after the California Department of Public Health’s (CDPH) new mask mandate went into effect, the CDPH updated its guidance to clarify the application of the mandate. Previously, the mandate by the CDPH referenced “indoor public settings” without further definition. In the updated guidance, the CDPH clarifies that “the guidance applies to all workplaces, regardless of whether they serve the public, or are open to the public.  Masks may be removed, per the exemption noted below, if the workplace consists of a single employee, or may be removed while an employee is alone in a closed office or room.”

Cal/OSHA also updated its FAQ for the COVID-19 Emergency Temporary Standard (ETS) to state that the ETS requires that employers “provide face coverings and ensure they are worn by employees when required by orders of the California Department of Public Health (CDPH). (8 CCR § 3205(c)(6)(B).) The December 13, 2021 CDPH guidance is such an order.”

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for updates on workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.

On December 15, 2021, the Fifth Circuit Court of Appeals granted, in part, the federal administration’s motion to stay the nationwide preliminary injunction enjoining the Centers for Medicare and Medicaid (CMS) from enforcing its COVID-19 vaccine mandate nationwide as to non-plaintiff states. Louisiana et al v. Becerra et al., No. 3:12-cv-03970 (W.D. La. December 15, 2021).

Immediately after this ruling was issued, Plaintiffs in the matter pending before the United States District Court for the Northern District of Texas, Texas et al v. Becerra et al., No. 2:21-cv-229-Z (N.D. Tex. December 15, 2021) sought a ruling on its Motion for Preliminary Injunction. The Court granted the motion enjoining CMS from enforcing its COVID-19 vaccine mandate in Texas.

As a result, because of this Fifth Circuit ruling, the Eastern District of Missouri’s prior ruling, and the Northern District of Texas ruling, CMS cannot presently enforce its vaccine mandate in: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio, Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, Texas and Wyoming.

As of now, CMS can proceed with enforcing its rule in all remaining 25 states. CMS has not yet stated whether it will proceed with enforcement in those 25 states and/or what new deadlines for compliance may be imposed if they do. Impacted employers should continue to monitor for further developments.

Please contact a Jackson Lewis attorney with questions.

The U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the OSHA ETS on COVID-19 vaccination and testing for employers with at least 100 employees. Read more.

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) added a new section, COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act, to its COVID-19 guidance. The updated guidance describes how the ADA’s three-part definition of disability (actual disability, record of disability or being regarded as an individual with a disability) applies to COVID-19 and the resulting impact on employers’ obligations under the law.

Much of the updated guidance focuses on situations when COVID-19 is, or is not, an actual disability. For example, the guidance confirms that an individual with COVID-19 who is asymptomatic or who experiences “mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks – with no other consequences – will not have an actual disability within the meaning of the ADA.” However, the updated guidance clarifies that situations involving more serious symptoms, particularly those expected to last several months, may constitute an actual disability under the ADA. In addition, the updated guidance confirms that conditions that are caused or worsened by COVID-19 can be an actual disability. The guidance reiterates that only individuals with an actual disability or record of a disability are eligible for reasonable accommodations (assuming the disability requires an accommodation and there is no undue hardship on the employer).

The EEOC’s updated guidance also raises key considerations for employers on the risks of potential “regarded as” disability claims.

Specifically, question N.8 of the EEOC’s updated guidance confirms that an employer does not automatically violate the ADA by taking an adverse action against an individual because they have COVID-19. “The ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others.” The guidance goes on to caution, however, that employers risk violating the ADA if they exclude an employee from the workplace based upon “myths, fears, or stereotypes” after the threat has passed (i.e., when an individual is no longer infectious and medically cleared to return to work).  The EEOC’s updated guidance highlights the need for employers to ensure their policies are consistent with current guidance issued by the CDC.

In addition, employers should take note of the EEOC’s reminder at question N.14 that the ADA’s requirements with respect to disability-related inquiries, medical exams, confidentiality of medical information, retaliation and interference apply to all applicants and employees regardless of whether they have a “disability” as defined by the ADA.

As employers work to implement policies and collect information regarding employees’ vaccination status, employers should be mindful of the guidance issued by the EEOC.

The U.S. Supreme Court denied a request to enjoin New York State from enforcing its regulation requiring COVID-19 vaccination for healthcare workers despite the fact that the regulation did not allow for religious accommodations. The Court did not issue any written opinion or rationale but was accompanied by a 14-page dissent by Justice Gorsuch.

Meanwhile, the Eighth Circuit Court of Appeals denied the federal government’s motion to stay a preliminary injunction that precludes the Centers for Medicare and Medicaid Services (CMS) from enforcing its COVID-19 Vaccine Mandate in the ten states at issue in that lawsuit. The federal government sought to have the preliminary injunction stayed but the Eighth Circuit Court of Appeals rejected that request without explanation. The nationwide injunction precluding CMS from implementing its COVID-19 vaccination mandate is similarly on appeal but in the Fifth Circuit Court of Appeals.

Healthcare employers should continue to follow these evolving legal issues to ensure compliance in this ever-changing landscape.

In response to the COVID-19 Omicron variant, the administration is expanding COVID-19 mitigation and tightening international travel requirements.

All individuals (including U.S. citizens) entering the United States from abroad will have to be fully vaccinated and present a negative COVID-19 test taken within one day of their departure. Previously, individuals were required to be fully vaccinated and supply a negative COVID-19 test taken within three days of departure. The updated testing requirement applies to all individuals two years of age and older. Meeting the one-day testing requirement may be challenging in some countries. In addition, mask requirements on all public transportation will be continued until mid-March 2022, instead of mid-January 2022.

On November 8, 2021, the geographic travel restrictions that prevented individuals who had been in over 30 countries within 14 days of their trip to the United States were lifted in exchange for vaccination and testing requirements. On November 29, 2021, 14-day travel restrictions were again implemented, but this time for travelers coming from eight countries in southern Africa. The new vaccination and testing requirements will be applied to all travelers – even those who are exempt or receive National Interest Waivers (NIEs) from the southern African restriction.

NIEs previously granted under other proclamations are no longer valid.

It is important to check out testing options in your country of travel to ensure that you can get the correct test result within the one-day window.

Jackson Lewis attorneys are available to assist you with compliance issues.