Not all Companies are facing a revenue loss or workforce retraction as the result of the COVID-19 Pandemic. Companies that are facing an increase in demand and need to hire new employees, however, may be facing a dilemma for onboarding new employees.
I-9 Employment Eligibility Requirements
Under federal law, employers and new hires must complete the Form I-9 Employment Eligibility Verification process to ensure that all employees employed in the United States are lawfully authorized for employment. This requires the employee to complete Section 1 of the Form I-9 on or before the first date of employment. The I-9 process normally requires that the company representative completing Section 2 of the Form I-9 be physically present with the new employee who is presenting his or her original identity and work authorization documents.
This allows the company representative to make an informed determination as to whether the documents being presented (i) appear to be genuine, and (ii) reasonably appear to relate to the individual presenting them. That is, in order to make this determination, the employer representative must physically touch and examine the documents presented by the employee before completing Section 2.
New Guidance from the Department of Homeland Security (DHS) due to COVID-19
However, in response to the spread of COVID-19, the United States Department of Homeland Security (DHS) announced temporary modifications to the Form I-9, Employment Eligibility Verification process, and enforcement actions. Changes range from remote verification to E-Verify’s indefinite response extensions.
In the past, within three business days after the initiation of employment, the employer must complete Section 2 of the Form I-9 after physically reviewing the document or documents presented by the new employee that demonstrates his or her identity and employment authorization. For example, the employee could present either (i) one unexpired List A document such as a U.S. passport which demonstrates both identity and work authorization, or (ii) a combination of one unexpired document from List B which establishes identity such as an unexpired driver’s license and one document from List C which demonstrates work authorization such as an unrestricted social security card.
As a reminder, employers should not mandate which documents an employee presents so long as the documents are unexpired and appear on the List of Acceptable Documents attached to the Form I-9. The most current version of the Form I-9, instructions for completing the Form I-9, and the List of Acceptable Documents can be found here.
The I-9 process normally requires that the company representative completing Section 2 of the Form I-9 be physically present with the new employee who is presenting his or her original identity and work authorization documents.
However, the country’s efforts to curb the spread of COVID-19 through social distancing makes this requirement impracticable, if not outright dangerous. The DHS has temporarily halted the requirement that employers physically review employee identification and employment authorization documents when completing the Form I-9.
Indeed, many employers have transitioned completely to telework arrangements which further makes it difficult, if not impossible, for the new hire and the company representative to be present at the same location in order to complete the Form I-9 process within the federally mandated three-day requirement. Businesses that are still operating that need to hire new employees during these unprecedented times need the ability to onboard new employees safely without having to worry about violating federal law related to the proper completion of the Form I-9.
DHS Guidance for Completing I-9 Verifications Remotely
Employers who have shifted their normal, physical worksites to remote operations may “inspect the Form I-9 Section 2 documents remotely and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2 of the Form I-9, when normal operations resume.” Examples of remote verification include reviewing documents provided “over a video link, fax, or email, etc.” This change is in effect through the earlier of May 20, 2020, or three business days after the termination of the National Emergency Declaration.
If an employer chooses to implement a Form I-9 remote document review policy, the employer must:
- Provide written documentation of their remote onboarding and telework policy for each employee and maintain evidence of meeting this requirement.
- Inform employees who elected remote onboarding and telework of the requirement that the employee return, in person, with the original documents provided during the remote document review process, no later than three days from when normal operations resume.
- When completing Form I-9, Section 2, at the time the employer resumes normal operations and conducts a physical review of the original documents the employee provided during remote verification, the employer should enter the phrase “COVID-19” in the “Additional Information” field,” together with the notation “documents physically examined on” followed by the date of actual physical examination.”
- If either one of the documents the employee originally presented during remote verification is expired when the physical review is conducted, the employer must conduct a verification of the employee by completing Section 3 of the Form I-9.
The DHS clearly noted that these remote document review Form I-9 temporary modifications are applicable only “to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9…”
This temporary policy may be used by employers for a period of 60 days starting March 20, 2020, or within 3 business days after the termination of the National Emergency, whichever comes first. It is possible that this policy may be extended; however, let’s hope that an extension is not required.
Should you have any questions about the I-9 process or any other employment matter, including COVID-19 issues, please feel free to contact any member of the Pierce/McCoy Labor and Employment team at 757-304-6685.