Author: Jennifer Frank

The U.S. Department of Homeland Security (DHS) recently extended the Form I-9 flexibilities related to physical inspection of documents requirements until October 31, 2022, due to continued safety precautions related to COVID-19. Therefore, employers may, until October 31, 2022, virtually inspect Form I-9 documentation for employees who are hired on or after April 1, 2021 and who work exclusively in a remote setting.

Employers should be aware that this temporary exemption from the physical inspection of documents requirements only applies until employees return to employment where they are physically in-person on a regular, consistent, or predictable basis, or the flexibility is terminated, whichever is earlier. Also, employers should know that the in-person physical inspection of I-9 documents requirement still applies to employees who actually report to work physically/in person at a company location on any regular, consistent, or predictable basis.

The Immigration Reform and Control Act of 1986 provides requirements for Form I-9, Employment Eligibility Verification. This law prohibits employers from hiring and employing an individual for employment in the United States if the individual is not authorized with respect to such employment. Employers are required to verify both the individual’s identity and employment authorization on Form I-9.

Employees must provide physical documentation to their employers to show their identity and authorization to work, which employers must acknowledge on the I-9 form. Employees must provide either a list A document (identity and employment authorization)(1) OR a list B (identity only) + a list C document (employment authorization)(2).

Previously, the Department of Homeland Security (DHS) created a COVID-19 Temporary Policy regarding documents establishing identity found on List B. DHS allowed these documents, which were set to expire on or after March 1, 2020 (and not otherwise extended by the applicable issuing authority) to be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. DHS adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic, such as a driver’s license.

Because document-issuing authorities have reopened and/or provided alternatives to in-person renewals, DHS will end this flexibility and the COVID-19 Temporary Policy for List B Identity Documents. Since May 1, 2022, employers are no longer be able to accept expired List B documents, and must only accept unexpired List B documents.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022.

See table below for update requirements.

[1] List A documents show both identity and employment authorization. 
Examples are U.S. Passport, Permanent Resident Card, or Employment Authorization Document

[1] List B documents establish identity – examples are driver’s license, voter registration card, U.S. military card   List C documents only establish employment authorization – examples are Social Security Card, original copy of a birth certificate

When the COVID-19 pandemic swept the nation in early 2020, businesses had to swiftly shift business models and determine how work could be accomplished while keeping their employees safe, healthy, and socially distant.  One of the largest changes in the 2020 workforce was employers’ use of remote work arrangements – otherwise known as “teleworking.” 

While at first blush the use of remote working arrangements seems like a “no brainer,” with numerous advantages for both the employee and employer, there are downsides that must be considered.  In addition, there are hidden legal issues to be identified, explored in advance, and carefully analyzed, to avoid unwanted surprises down the road.

Let’s take a look at the vast amount of advantages offered by telework:

• Increased employee productivity
• Increased employee mental health/morale
• Cut down on employee commuting (time and dollars)
• Employers can save thousands of dollars per employee on office costs/expenses
• Reduces carbon emissions (environmental)
• Economy benefits as employees have more free time to spend and shop more
• Flexible work arrangement seen as an employee benefit
• Employee relations / engagement
• Company leaders can still manage the business effectively      

On the other hand, there are a handful of downsides, which should be carefully weighed against the upsides:

• Employees can feel isolated (no in-person contact with coworkers or customers)
• Motivation may be lost, and performance may suffer 
• Communication may not be as effective or clear – certain messages can be lost if not transmitted in person
• Difficulty in managing a home environment when others around and distractions
• Confidentiality and security concerns in an at-home work environment

Before a business determines whether it can or should offer employees a work-from-home alternative, it is best to understand the array of legal issues and determine if a teleworking arrangement is still a viable one. 

Time tracking

Many employees are considered non-exempt from the Fair Labor Standards Act (FLSA) and are entitled to be paid on an hourly basis for all hours “suffered or permitted to work.”  This means if they perform work – even when those hours are not assigned or authorized – they are entitled to be paid for it.  In addition, for employers subject to the FLSA, they must pay their non-exempt workers overtime on hours worked over 40 in a workweek.  The federal Department of Labor issued guidance on August 24, 2020, discussing employers’ duty to track compensable hours worked of remote workers.  Employers will need to consider whether they will monitor employees’ computer time or some other method to determine “hours worked” – such as requiring daily or weekly time sheets from those workers. 

Performance management

With employees no longer in the office or workplace with their manager, performance management can become trickier.  Businesses will need to consider how employees will demonstrate productivity and turn in their work product.  Managers are well advised to establish employee to-do lists, indicating the frequency of required reporting in, as well as having regular check-ins with employees and the team. Managers should also identify measurable productivity goals and establish priorities and deadlines. Finally, supervisors/managers should still conduct performance reviews on their employees, and organizations will need to determine how they will be conducted (Zoom? Phone? In-person?) and when they will be conducted. 

Home office space

Several issues need to be considered as employees carve out a space in their homes from which they will be working.  First, the employer needs to establish with the employee what space is considered the actual “office” so that workers’ compensation exposure can be limited in the case of an on-the-job accident or injury.  The whole house or apartment should not be considered the workspace!  

Next, the employer needs to identify what business-related expenses are being incurred by the employee.  South Dakota law (SDCL § 60-2-1) requires employers to indemnify employees for what they “expend or lose in direct consequence of the discharge of duties.”  Consider items such as computer, internet connection, printer, paper, office supplies, electricity, hardware/software, desk/chair/stand-up desk, and cellphone.  If the employer is providing items to the employee, it should take an inventory of those items.  Employers also need to consider IT and technology support, who will manage it, and what the procedures will be to ensure smooth operational flow.  

Communication

Managers need to be clear and up-front with employees about the manner and method of expected communication (e.g., email, Zoom call or phone call?) and what is the expected frequency.  Also, managers should let employees know if they will be required to come into the office or workplace and when.

Remote work agreement/policy

Employers should consider using a formal remote work agreement, which the employer and employee will both sign and date.  The advantage of this approach is that it will memorialize the understanding of the parties, details can be provided, and expectations established.  Employers should be careful not to promise an indefinite at-home work arrangement, but instead put a time limit on it (which can be extended, if needed).  Finally, employers should implement a telecommuting policy and procedure so that guidelines and rules are clearly established and communicated. 

Many recent research studies have concluded that remote working is here to stay for the long-term, and many employees desire to continue working remotely, at least part of the time.  Each business will need to evaluate the pros and cons of going remote (or continuing remote work arrangements) and whether it makes business sense to allow employees the opportunity and flexibility of working from home.  Employers will need to evaluate the job role being considered and the reasonable expectations for the job.  In sum, employers will need to balance flexibility and the potential upsides with needed employee productivity and performance, as well as costs and legal compliance considerations.  To be sure, remote working arrangements can continue to be a strategic advantage for certain businesses as the pandemic continues on into 2021, and beyond.       

As the COVID-19 pandemic continues into 2021, businesses are still concerned about the best available lawful methods they can utilize to protect the health and safety of their workers and customers/clients.   By now, employers in South Dakota are aware that the COVID-19 vaccine is becoming available to individuals throughout the United States and the world.  A frequent question among employers is whether they can lawfully require their employees to obtain the COVID-19 vaccine as a condition of employment.  Another related question is whether they can lawfully recommend, but not mandate, that their employees obtain the COVID-19 vaccine.   

Last year, the federal Equal Employment Opportunity Commission (“EEOC”) explained in its guidance that employers were permitted to both screen their employees (such as taking the temperature of an individual) and test their employees for COVID-19 before they entered the workplace, to determine whether they have the COVID-19 virus.    

The EEOC made it clear that it may exclude those individuals from the workplace who either have COVID-19, or have symptoms associated with the virus, because their presence would present a direct threat to the health or safety of others.   The Centers for Disease Control (“CDC”) identified a list of COVID-19 symptoms, including fever, chills, cough, shortness of breath, and sore throat. 

The most recent guidance from the EEOC came in December 2020, and makes it clear that employers are permitted to require employees to be vaccinated before returning to the workplace.  However, although the EEOC has condoned employer-mandated COVID-19 vaccines, it may be a best practice for employers to simply encourage their employees to obtain the vaccine, rather than requiring them to get it.  This is because a mandatory scheme implicates potential Americans with Disabilities Act (“ADA”) issues that need to be considered before making a program of vaccinations mandatory.

The first issue to consider for a mandatory COVID-19 vaccine program is whether a vaccine constitutes a “medical exam” for purposes of the ADA.  The EEOC answered this question in its Technical Assistance Questions and Answers by stating “no – the vaccination itself is not a medical examination.”  The EEOC went on to state “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status, and therefore, it is not a medical examination.” 

The second issue to consider is whether any further questioning of employees related to the COVID-19 vaccine could implicate the ADA’s standards for disability-related inquiries.  As the CDC indicated, health care providers should ask certain questions of an individual before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination.  The EEOC stated that these types of pre-screening questions do invoke the ADA and its standards because they are likely to elicit information about a person’s disability, and are therefore “disability-related.” 

According to the ADA standard, the employer must then show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  In order to meet this standard, the EEOC states that “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and therefore does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”  The EEOC instructs employers to conduct an individualized assessment concerning a direct threat, such as (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  

One more item about mandatory vaccine programs: employers will also need to consider potential employee requests for accommodations, such as on account of a disability or sincerely held religious practice or belief.  If an employee states that he or she cannot get vaccinated because of a disability or sincerely held religious belief, practice, or observance, the employer will need to explore through the reasonable accommodation process whether there is a possible accommodation that will not cause the organization an undue hardship (e.g., a remote work arrangement). 

If there is no reasonable accommodation possible, the employer may lawfully exclude the worker from the workplace.  However, the employer should not automatically terminate the worker, as it would need to determine if any other rights apply under other Equal Employment Opportunity laws or other federal, state and local rules or regulations.    

To avoid the above potential application of the ADA, an employer can simply choose to not make its vaccine program mandatory, and instead, offer a vaccination to its employees on a voluntary basis (meaning the employees choose whether to receive the vaccine).  In this case, the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  If an employee chooses not to answer these questions, then the employer may decline to administer the vaccine, but may not retaliate against or threaten the employee for refusing to answer any questions. 

In addition, if an employee receives the vaccination from a third-party (e.g., a pharmacy), the ADA’s “job-related and consistent with business necessity” standard on disability-related inquiries will not apply.  Also, an employer simply asking an employee to show proof of receipt of a COVID-19 vaccine is not a disability-related inquiry because merely requesting such proof is not likely to elicit information about someone’s disability.  Employers do need to be careful not to ask any follow-up questions of the employee, such as why they did not receive the vaccine, as it may elicit information about a person’s disability and, therefore, be subject to the ADA standard of “job-related and consistent with business necessity.”     

One final point about vaccines and any potential employee medical information obtained in the course of the vaccine program:  employers are required to keep such information confidential and separate from the employee’s regular personnel file, in accordance with the ADA.

In summary, each employer will have to think about the costs and benefits of potentially implementing a mandatory vaccine program, considering the nature of its business and products or services it provides (for example, health care entities are one type of unique and specialized business that may want to make the vaccine mandatory due to concerns about health care workers’ and patients’ health and safety). 

And while the EEOC has put its stamp of approval on employer-mandated COVID-19 vaccines, it may be a best practice for employers to simply encourage their employees to obtain the vaccine, rather than requiring them to get it.  In that way, the employer will have employees’ “buy-in” which will increase employee engagement due to their voluntary choice (rather than feeling forced to get the vaccine) and avoid some of the more burdensome ADA requirements.

For more information on COVID-19 and the ADA, visit:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Please contact attorney Jennifer S. Frank at (605) 791-6450 for further information or questions.

As COVID-19 cases surge in South Dakota lately, businesses and cities are responding to help slow the spread of the virus and mitigate the pandemic.

As many businesses had already begun to reopen or had remained open in some capacity during the past months, following the Center for Disease Control (CDC) guidelines was considered important and recommended.

The CDC suggested key employer activities focus on:

• preventing and reducing transmission among employees by actively encouraging employees to stay home, conducting daily in-person or virtual health checks, identifying how workers may be exposed to COVID-19 at work, keeping sick employees separated from healthy employees, requiring sick employees to go home, and educating employees about important preventative and protective steps;
• maintaining healthy business operations by implementing flexible sick leave and policies and practices that support employees, frequent and clear communication of policies and procedures to employees, anticipating absences and determining operations if absenteeism increases, and establishing policies and practices for social distancing; and
• maintaining a healthy work environment by increasing workplace ventilation systems, providing handwashing stations, hand sanitizer, face coverings, and tissues, encouraging hand hygiene and avoidance of touching one’s face, performing routine cleaning, encouraging phone calls and videoconferencing (instead of in-person meetings), social distancing of at least 6 feet apart, and limiting travel.

Up to this point, the State of South Dakota has never mandated any COVID-19 precautions (such as wearing masks), but does recommend social distancing, limiting people in retail places, and wearing masks for customers and employees.

Just last week, on November 17th, the City of Sioux Falls passed an ordinance mandating masks to be worn by people inside retail businesses and city-owned facilities where proper social distancing of 6 feet cannot be achieved. The mandate took effect on November 21, 2020. While the downside is that there is no penalty (such as a fine) for a violation, the upside is that it supports businesses who choose to enforce a mask policy. Masks have been identified by the CDC and other health experts as one of the best ways to slow or stop transmission of COVID-19.

Another effort recently made in Sioux Falls is the launching of a campaign called the “Safer Sioux Falls Pledge Program.” This campaign publishes a list of those local businesses who sign a voluntarily pledge to practice COVID-19 mitigation efforts in their workplaces – in an effort to keep workplaces safe and open for business. This public commitment from businesses states that they will help slow the spread of the virus by practicing COVID-19 mitigation efforts, including, but not limited to following CDC precautions (such as wearing face masks).

Any business that signs the pledge will be able to identify its business as having taken the Safer Sioux Falls Pledge, and will be listed in an online directory. Business can sign the Safer Sioux Falls pledge and consumers can see a list of those who have pledged at siouxfalls.org/pledge.

The Safer Sioux Falls Pledge includes some measures such as requiring face coverings, having hand sanitizer available for customers, practicing social distancing of 6 feet apart or more when possible, encouraging frequent employee hand washing, requiring employees to stay home when sick, and training employees on COVID-19 safety protocol.

Other cities, such as Huron, have approved resolutions that require masks within city limits. The City of Huron has also offered detailed guidelines for businesses on how to safely conduct themselves, with information on social distancing, conducting daily temperature checks, encouraging employees to stay home when sick, cleaning and disinfecting, and plexiglass dividers where customers and employees interact.

The City of Rapid City announced at the end of October a requirement for City staff who provide face-to-face services to customers, as well as members of the public entering city buildings, to wear a facial covering. Masks will be provided if necessary, and any person who refuses to wear a mask will be refused services. In addition, customers are being encouraged to utilize different options to reduce visits to city buildings, such as the use of online payments, calling, or email communications.

Governor Noem has repeatedly expressed a high value on individual choice as well as individual responsibility. She recently reiterated one of the best things people can do to stop the spread of the virus is wash their hands. It is not likely that a state-wide mask mandate will be issued by the Governor’s office any time soon, even with the increase in COVID-19 cases across the state.

Ultimately, in South Dakota it is up to each individual business to determine how they want to operate and if they want to require masks and other safety measures. For businesses that want to stay open and want to ensure healthy customers and healthy employees, they will have to find the best way to implement guidelines and actions to meet those goals. Then, it is also up to the customer, client or consumer to determine whether they want to support certain businesses. In the end, it is a business strategy in appealing to the customer (and their health/safety concerns) and ensuring the company or organization is the type of place customers will want to frequent.