I-9 Flexibility for Employers Due to COVID-19
The Department of Homeland Security (“DHS”) has announced temporary flexibility related to Form I-9 requirements.
- Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s presence until normal operations resume. Employers, however, are required to inspect Section 2 documents remotely and obtain, inspect and retain copies of the documents within three business days.
- Employers who wish to utilize themselves of this new option must prepare written documentation of their remote onboarding and telework policy for each employee.
- Once normal operations resume, all employees onboarded using remote verification must report to their employer within three business days for an in-person verification and present their employment eligibility documentation. Once the physical inspection takes place, employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2’s “Additional Information” field.
- Employers with employees still physically present at a work location may not avail themselves of this provision. There are no exceptions currently available for such employers.
- Employers not eligible for the exception, however, may have some options available to them. Recent updates to FormI-9 allow an employer to designate a representative to review new hires’ documents. Such representatives can be a law firm, a vendor, a notary, or a local employee. Employers choosing this route, however, should exercise caution when representing a third-party to ensure the representative is well-versed in Form I-9 compliance.
- Applicable employers may implement these provisions for a period of 60 days from the notice’s date or within three business days after the termination of the National Emergency, whichever comes first.
Employers with questions on Form I-9 compliance or struggling to navigate through the ever-changing landscape of the workplace in light of the National Emergency should reach out to employment counsel for up-to-date advice and counsel.
About the Author: Alejandro Pérez is an employment law attorney and partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers in all facets of employment law, including issues arising under the Americans with Disability Act. Alejandro is committed to providing clients with clarity and guidance as to their obligations in connection with the coronavirus pandemic.