May 7, 2020

Updated EEOC Guidance on Covid-19 and the ADA: What Employers Need to Know

On Tuesday May 5, 2020, the United States Equal Employment Opportunity Commission (EEOC) further updated its Technical Assistance Questions and Answers about COVID-19, the American with Disabilities Act (ADA) and other EEO laws. The latest EEOC update focuses on accommodating an employee with an underlying medical condition that may place the employee at greater risk from COVID-19.

New Guidance on Addressing Requests for Reasonable Accommodation
The EEOC raised the practical question of what an employee needs to do in order to request a reasonable accommodation because of a medical condition identified by the CDC as one that may put the employee at higher risk for severe illness from COVID-19. The EEOC stated that an employee, or a third party such as a doctor, must let the employer know that the employee needs an accommodation for reasons related to a medical condition. The communication should let the employer know that the employee has a medical condition that necessitates a change to meet a medical need. The EEOC indicated that the request can be made orally or in writing, and that the term “reasonable accommodation” or a reference to the ADA does not need to be explicitly mentioned.

After receiving a request, the employer may seek medical documentation and ask follow up questions to help determine whether the employee has a disability and if there is a reasonable accommodation that can be provided without imposing an undue hardship on the employer.

Guidance for Employers In Absence of an Accommodation Request
The EEOC also addressed the situation where an employee has not requested an accommodation, but the employer is aware that the employee has one of the medical conditions identified by the CDC and is concerned that the employee’s health will be jeopardized upon returning to the workplace.

The EEOC first confirmed that if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

The EEOC then cautioned that “the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.” The only exception identified under the ADA, which the EEOC noted is a high standard, is where the disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation.

The EEOC specifically stated that a “direct threat assessment cannot be based solely on the condition being on the CDC’s list.” Rather, the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s specific disability. In making this determination, an employer is required to consider the duration of the risk to the specific employee, the nature and severity of the potential harm, and the likelihood and imminence of potential harm.

Even where an employer reasonably determines that an employee’s disability poses a direct threat to their own health, the EEOC makes clear the employer still cannot exclude the employee from the workplace unless the employer is unable to provide a reasonable accommodation without undue hardship to the employer. If there are no reasonable accommodations to remove the direct threat in the workplace, then the employer must consider whether accommodations such as telework, leave, or reassignment may be offered without undue hardship to the employer.

EEOC Offers Accommodation Examples
The EEOC provided specific examples of accommodation that, absent undue hardship, “may eliminate (or reduce to an acceptable level) a direct threat to the health of the employee.” These examples include:

  1. Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
  2. Erecting a barrier that provides separation between an employee with a disability and coworkers/the public;
  3. Increasing the space between an employee with a disability and others;
  4. Elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position);
  5. Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting);
  6. Moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

The EEOC made clear that these are not an exhaustive list of examples, and encouraged employees and employers to be creative and flexible.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days. As always, we encourage employers to consult with counsel with their specific questions and concerns related to COVID-19.

May 2, 2020

USCIS Offers Limited Flexibility to Meet Response Deadlines

On May 1, 2020, U.S. Citizenship and Immigration Services (USCIS) announced flexibility for applicants and petitioners to meet certain government response deadlines for the following:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

Which Documents are Eligible

Response deadline flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1 and July 1, 2020, inclusive.

New Response Deadlines

USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking action. USCIS will consider a Form I-290B received up to 60 calendar days from the date of the decision before it takes any action.

Please visit uscis.gov/coronavirus for other USCIS updates.

April 27, 2020

Reopening of USCIS Offices Postponed to at least June 4

Due to the impact of COVID-19, USCIS temporarily suspended all in-person services, including interviews and biometrics collection, at its field and asylum offices and application support centers on March 18, 2020. USCIS announced that it is now preparing to reopen its offices on or after June 4. While offices are temporarily closed, USCIS continues to provide limited emergency in-person services which must be coordinated through the USCIS Contact Center.

What This Means for Employers and Foreign Nationals

  • Field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies
  • Asylum offices will send interview cancellation notices and automatically reschedule asylum interviews; applicants will receive a new interview notice with the new time, date and location
  • Application Support Center (ASC) appointments, including biometrics appointments, will be automatically rescheduled when in-person services resume and individuals will receive new appointment letters in the mail
  • Individuals with InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public

Ongoing Updates

USCIS continues to posts updates at USCIS.gov. For assistance with emergency appointments, you may  contact the USCIS Contact Center. For the latest information on the status of an office, visit https://www.uscis.gov/about-us/uscis-office-closings. For additional information, please contact your Gibney legal team or email info@gibney.com.

April 27, 2020

New Version of Form I-9 is Required on May 1, 2020

REMINDER: Employers must use the new version of Form I-9 new version of Form I-9 (version dated 10/21/2019) starting Friday, May 1, 2020. Due to the coronavirus pandemic, DHS has temporarily relaxed the “in-person” review requirements associated with the Form I-9 process for certain employers on a remote working schedule.

Form and Instruction Changes

  • Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North (change is only visible on the online form)
  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

In-Person Requirements Relaxed

DHS relaxed the “in-person” review requirements associated with the Form I-9 process for certain employers on a remote working schedule. All other Form I-9 process rules remain in effect, meaning that remote-working employers must still complete Form I-9 within three (3) business days following an employee’s first day of work. You may review the official announcement on the DHS website. Please  visit our alert reviewing instructions for the remote completion of Forms I-9 due to the COVID-19 pandemic.

If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

April 23, 2020

President Restricts Entry for Limited Group of Immigrants

President Trump issued a Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. The proclamation is effective 11:59 pm EDT on April 23, 2020 for an initial period of 60 days, and is subject to extension.

The proclamation temporarily suspends the entry of select classes of immigrants currently outside the U.S. seeking to enter the U.S. as permanent residents with a new immigrant visa. Due to consulate closures and COVID-19 travel restrictions already in place, as well as broad categories of exempted immigrants, the immediate impact of the order is limited in scope.

Initially the president intended a more sweeping ban that would have also barred individuals from obtaining temporary work visas, but that proposal was met with fierce resistance from the business community. With respect to temporary workers, the proclamation has no immediate impact but does direct the Department of Labor (DOL) and Department of Homeland Security (DHS) to review nonimmigrant programs in the next 30 days and recommend “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

Who is impacted by the admission restrictions?

The proclamation only applies to immigrants seeking to enter the U.S. as permanent residents who:

  • are outside the United States on the effective date;
  • do not have an immigrant visa that is valid on the effective date; and
  • do not have another valid official travel document other than an immigrant visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document).

The proclamation does not apply to:

  • lawful permanent residents of the United States;
  • essential workers and qualifying immediate family members who are determined by the government to be essential to the U.S. COVID-19 response, including: physicians, nurses, health care professionals, researchers and others who perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak;
  • foreign nationals applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
  • any foreign national who is the spouse of a United States citizen;
  • qualifying children of a U.S. citizen under 21 or qualifying prospective adoptees;
  • any foreign national whose entry would further important United States law enforcement objectives, as determined by government and based on the recommendation of the Attorney General’s office;
  • members of the United States Armed Forces and their spouses and children;
  • qualifying Special Immigrant Visa holders in the SI or SQ classification and their spouses and children;
  • individuals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The proclamation also does not apply to immigrants seeking asylum or entry on certain humanitarian grounds.  Consular officers have discretion to determine who qualifies for an exemption from the order.  For additional details regarding qualifying exemptions, please see the full text of the Proclamation.

What is the impact on employers?

As indicated above, the immediate impact of the proclamation is limited by the relatively narrow scope of the covered individuals and travel restrictions already in place due to COVID-19. If the proclamation is extended or expanded, there may be broader impacts and delays in processing of immigrant visas (i.e., green card applications) for foreign national employees applying for permanent residence.

With respect to temporary foreign workers, e.g. nonimmigrants, the proclamation directs DOL and DHS to recommend further measures to “ensure the prioritization, hiring, and employment of United States workers.” The Trump Administration has long sought to limit legal immigration, H-1B visas and other temporary worker programs, in line with its earlier “Buy American, Hire American” executive order and its ensuing highly restrictive policies. Many such proposals face strong resistance from Congress, employers, business groups, universities, and immigration advocates as detrimental to the economy and outside the authority of the President. Executive actions that lack statutory authority or a sufficient nexus to national security are likely to face significant legal challenges. Nonetheless,  employers should expect the Administration to advance additional restrictive measures impacting other visa types in the weeks ahead.

Gibney will continue to monitor developments and provide updates as they become available.  If you have questions or need specific legal advice, please contact your Gibney representative.

April 21, 2020

President Trump Announces Intent to Suspend Immigration to U.S.

Last evening, President Trump  announced his intent to  issue an executive order  suspending all immigration to the United States. The announcement was made via Twitter, and offered few details.  President Trump cited “the Invisible Enemy” – presumably, the coronavirus – and  the need to protect jobs for U.S. citizens. While the U.S. Supreme Court has upheld the president’s broad authority to restrict admission of foreign nationals to the U.S. on national security and public health related grounds, as evidenced by recent travel bans and restrictions, his authority to suspend immigration due to economic considerations is less clear.

The Trump Administration has long sought to reduce immigration to the U.S., and to date, has primarily focused on asylum seekers, refugees, family-based immigrants, and the undocumented. This latest announcement takes aim at employment-based immigration. It is not yet not known whether the order will seek to suspend the admission of foreign nationals for a period of time, or whether individuals already in the U.S. with valid work visas will also be impacted.  Insofar as the U.S. immigration scheme derives from a statute enacted by Congress, attempts by the Executive branch to vacate the statute  should be met with legal challenges.

Gibney is closely monitoring this development and will provide updates as additional information becomes available.

April 20, 2020

Updated EEOC Guidance on COVID-19, the ADA and Other EEO Laws: What Employers Need to Know

On Friday April 17, 2020 the United States Equal Employment Opportunity commission (EEOC) updated its Technical Assistance Questions and Answers about Covid-19, the American with Disabilities Act (ADA) and other EEO laws.

The EEOC update contains important clarifications for employers on issues ranging from temperature testing employees, retention and proper storage of Covid-19 related medical records, to reasonable accommodations of disabled workers who may be at greater risk from Covid-19 as well as steps employers can take to reduce the risk of pandemic related harassment due to national origin, race, or other protected characteristics.

While employers would benefit from reading the entire update, the following 10 answers given by the EEOC to employer questions are particularly helpful:

  1. When screening employees entering the workplace, employers may ask employees about symptoms of Covid-19 identified by the CDC, other public health officials, and/or reputable medical sources.
  2. As the ADA already requires that employers store all medical information about an employee separately from the employee’s personnel file, employers may store medical information related to Covid-19 in existing medical files for employees and need not create separately stored files solely for Covid-19.
  3. An employer may maintain a log of daily temperature checks of employees provided it maintains the confidentiality of the information.
  4. Employers may disclose the names of employees it learns have Covid-19 to public health officials. Similarly, a staffing agency or contractor who places an employee in an employer’s workplace may notify the employer if it learns the employee has Covid-19 so that the employer can determine if the employee had contact with anyone in the workplace.
  5. Employers may not unilaterally postpone start dates or withdraw job offers to individuals over 65 years old or who are pregnant, despite the fact that the CDC has identified them as being at higher risk of Covid-19. Employers may choose to allow telework or discuss whether the individuals would like to postpone their start date.
  6. For jobs that may only be performed in the workplace, there may be reasonable accommodations that employers may provide to employees who, due to a pre-existing disability, are at higher risk of Covid-19. This may include low cost accommodations to increase distance between the employee and others, temporary job restructuring, or modifying scheduled or shift assignments.
  7. Employees already receiving accommodation for a disability may be entitled to additional or altered accommodations that do not impose undue hardship on employers.
  8. The employer’s current circumstances arising from the pandemic is relevant in determining whether a requested accommodation would impose an undue hardship. For example, it may be more difficult to conduct a needs assessment, acquire specific items, or provide temporary assignments or remove marginal functions. Also, the sudden loss of significant revenue by the employer, and the lack of discretionary funds, may cause an otherwise reasonable accommodation request to pose an undue hardship to the employer.
  9. The EEOC recommends that when an employer reopens its workplace they should remind employees that it is against federal EEO laws to harass or otherwise discriminate against co-workers based on race, national origin, color, sex, religion, age, disability or genetic information.
  10. When an employer requires returning employees to wear protective gear, an employee with a disability may need a reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for those who communicate with employees using lip reading, or gowns for individuals who use wheelchairs. Similarly, an employee may request a religious accommodation under Title VII (e.g., modified equipment due to religious garb).  In these instances, employers must discuss the request and provide the modification or an alternative if feasible if it does not impose an undue hardship on the employer’s operation.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days.  As always, we encourage employers to consult with counsel with their specific questions and concerns related to Covid-19.

 

April 15, 2020

COVID-19:  USCIS Guidance for Extending/Changing Status During Pandemic

The coronavirus pandemic presents unique challenges for foreign nationals in the U.S. who have status expiration dates approaching. Many of these individuals are unable to depart the U.S. due to travel restrictions and health concerns, while others may face obstacles to filing applications to extend status while in the U.S.

Thus far U.S. Citizenship and Immigration Services (USCIS) has declined to provide special relief.  Its position is that there are measures under current law that are available for nonimmigrants who may not be able to timely file extensions or depart the U.S. due to COVID-19 or health-related issues. These existing measures are discretionary and generally still require physical filings with USCIS.

Apply for an Extension of Status

Eligible nonimmigrants whose status and work authorization will soon expire may file applications to extend or change status with a USCIS Service Center prior to the I-94 status expiration date.   In certain circumstances, a timely filed extension of status application may also extend the work authorization of the applicant for a period of 240 days beyond the I-94 expiration date, while the application is pending. However, this benefit does not apply to all visa types. Please check with your designated Gibney representative for an individual case assessment, as there are serious consequences for working without authorization for both the employer and the employee.

Limited Online Filings Available

One of the obstacles that foreign nationals and their employers face in filing applications to extend or change nonimmigrant status is the need to file hard copy applications with USCIS.  While USCIS has waived the requirement that individuals file applications with original (“wet”) signatures,  unfortunately, USCIS only offers limited online/electronic filing options. The most common employment-based nonimmigrant visa petition used to secure work authorization, Form I-129, is not currently available for online filing or online payment of fees.  As a result, in most instances, foreign nationals and their employers must still submit a physical filing to USCIS, entailing the need to produce and include filing fee checks and to arrange for the physical delivery of a petition to USCIS.

Flexibility for Late Application Filings

An individual who is unable to file an extension of status application prior to his/her I-94 expiration date may  be eligible for discretionary relief in making a late filing.  Under current regulations, if an applicant files an extension of stay or change of status request after the authorized period of admission expires, USCIS may, in its discretion, excuse the failure to file on time if it was due to extraordinary circumstances.

COVID-19 as Extraordinary Circumstance

USCIS has generally recognized COVID-19 as an “extraordinary circumstance” beyond the control of the foreign national. This means that in those cases where an individual was unable to depart the U.S. or file an extension of status prior to status expiration due directly to the pandemic, a request to retroactively grant status may be approved.  Granting such requests is still within the sole discretion of the USCIS adjudicator.  The length of delay in filing must be commensurate with the circumstances and the applicant must submit credible evidence to support the request, which USCIS will evaluate on a case-by-case basis.   We caution against relying on this discretionary relief as there are severe consequences for remaining in the U.S. beyond an I-94 expiration date when an extension of status application was not timely filed.  Please consult with your Gibney representative prior to making any late filing.

Visa Waiver Entrants – Satisfactory Departure

Individuals who have entered the U.S. for business or tourism pursuant to the visa waiver program (i.e., with ESTA approval) are prohibited from filing  extensions of stay in the U.S. and must depart the U.S. when the authorized period of stay expires. However, in limited circumstances, the individual may request Satisfactory Departure if he/she is unable to depart the U.S. by the admission period expiration date.  Satisfactory Departure provides a one-time, 30-day extension of status if an emergency prevents timely departure.

Generally USCIS has authority to consider and grant Satisfactory Departure requests.  However, there are also regional ports where U.S. Customs and Border Protection (CBP) has stepped in to provide assistance for visa waiver travelers needing Satisfactory Departure.  Participating ports have specific requirements and procedures, and not all ports will assist. If you are a visa waiver traveler and require Satisfactory Departure, please contact your designated Gibney representative prior to expiration of your current period of stay.

For policy updates, operational changes, and other COVID-19 information, please visit uscis.gov/coronavirus or contact your Gibney team.

April 14, 2020

USPTO Issues Patent and Trademark Filing Deadline Extensions

The United States Patent and Trademark Office (USPTO) is providing extensions to file certain patent and trademark-related documents and pay required fees as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act.

Extension Guidelines

  • For eligible documents or fees due between (and inclusive of) March 27, 2020 and April 30, 2020, the filing will be considered timely if made within 30 days of the original due date, provided that the filing is accompanied by a statement that the delay in filing or payment was due to the COVID-19 outbreak.
  • A delay in filing or payment is due to the COVID-19 outbreak if the outbreak materially interfered with timely filing or payment.
  • Qualifying circumstances include office closures, cash flow interruptions, lack of access to files or other materials, travel delays, personal or family illness, or similar circumstances.
  • The person affected by the outbreak may be a practitioner, applicant, registrant, or other person associated with the filing or fee. For patents, this may also be a patent owner, petitioner, third-party requester or inventor.

Trademarks

Eligible trademark filings include responses to Office actions, notices of appeal, statements of use, notices of opposition, priority filings, transformation and renewal applications, affidavits of use or excusable nonuse and related requests for extension. For all other situations where COVID-19 has prevented or interfered with a proceeding before the Board, a request or motion for an extension can be made.

Patents

Eligible patent filings include responses to Office actions, notices of appeal, appeal and reply briefs, appeal forwarding fees, PTAB oral hearing and rehearing requests, Chief Judge petitions, patent owner preliminary response in a trial proceeding, or any related responsive filings. Additional relief limited to small and micro entities includes replies to the following notices: omitted items; file corrected application papers; incomplete applications; comply with nucleotide sequences requirements; file missing parts of application (including payment of filing). The extension does not apply to filing dates for new patent applications.

Additional Relief

For trademark and patent applications that were abandoned and registrations that were canceled/expired due to COVID-19, the USPTO waived the petition fee to revive the abandoned application or reinstate the canceled/expired registration. Petitions must include a statement explaining how the failure to respond to the Office communication was due to the COVID-19 outbreak and must be filed not later than two months after the issue date of the notice of abandonment or cancellation.

USPTO Office Remains Open

The USPTO is open for the filing of documents and fees. Waivers are only available for delays due to the COVID-19 emergency.

What’s Next

The USPTO will continue to evaluate the evolving situation around COVID-19 and the impact on the USPTO’s operations and stakeholders. If the USPTO extends the CARES Act relief, the USPTO will provide timely notice. Gibney will continue to monitor these updates. For more information, please see the USPTO FAQs.

April 9, 2020

IRS Employee Retention Credit: What Employers Need to Know

The Internal Revenue Service launched the Employee Retention Credit to encourage businesses to keep employees on their payroll. The refundable tax credit is 50% of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19.

What Businesses Qualify

The credit is available to all employers regardless of size, including tax-exempt organizations. State and local governments and their instrumentalities and small businesses who take small business loans do not qualify.

Employers must fall into one of two categories:

  • Business is fully or partially suspended by government order due to COVID-19 during the calendar quarter
  • Gross receipts are below 50% of the comparable quarter in 2019; if gross receipts go above 80% of a comparable quarter in 2019, they no longer qualify after the end of that quarter
  • Measures are calculated each calendar quarter

How Credit is Calculated

Credit is 50% of qualifying wages paid up to $10,000 in total for wages paid after March 12, 2020, and before Jan. 1, 2021. Wages are not limited to cash payments, and also include a portion of the cost of employer provided health care.

Qualifying Wages

Qualifying wages are based on the average number of a business’s employees in 2019.

  • Employers with less than 100 employees in 2019: Credit is based on wages paid to all employees, regardless if they worked or not; if employees worked full time and were paid for full time work, employers still receive the credit
  • Employers with more than 100 employees in 2019: Credit is allowed only for wages paid to employees who did not work during the calendar quarter

How Employers Can Receive Credit

  • Will be immediately reimbursed by reducing their required payroll tax deposits withheld from employees’ wages by the amount of the credit
  • Must report their total qualified wages and related health insurance costs for each quarter on their quarterly employment tax returns or Form 941 beginning with the second quarter
  • If employment tax deposits are not sufficient to cover the credit, employers may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19

More updates on the Employee Retention Credit, Tax Credits for Required Paid Leave and other information can be found on the IRS Coronavirus page.