By: Bruce Buchanan, Sebelist Buchanan Law




As I informed you in a prior blog, http://discuss.ilw.com/blogs/bbuchan...-for-employers, the Department of Homeland Security (DHS) has announced, due to COVID-19 and employers working remotely, it will defer the requirements for employers to review Form I-9 documents in-person with new employees where employers and workplaces are operating completely remotely.

As I previously stated, it appears this new caveat to I-9 compliance is only applicable to “where employers and workplaces are operating completely remotely” – meaning all of the employer’s employees are working remotely. But, a recent blog by my good friend John Fay, president of LawLogix, a division of Hyland Software and an I-9 guru, has made me reconsider whether this exception applies if only a portion of the workforce due to COVID-19 are working remotely.
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To answer the question, let’s look at the exact language in question:
This provision only applies 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…. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

The phrase, “employers and workplaces”, seems to imply DHS will be looking at the particular workplace. If not, why did DHS use both “employers and workplaces” instead of just employers. Thus, if an employer has one workplace open while others are closed due to COVID-19 “Safe at Home” orders, one could arguably allow an employer to use remote verifications for new hires al the closed locations, where all employees are working remotely. Why? Because that specific workplace is operating remotely.

In a different scenario, what if an employer has employees working on-site, but wants to use remote verification for new hires in order to maintain the 6 feet social distancing. It would be very difficult for HR to see the new hire’s ID from 6 feet away. LOL. This appears to be where the employer may use the sentence “[I]f newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate (remote verification) on a case-by-case basis” to their advantage

DHS included existing employees being subject to quarantine as opposed to just new hires. Thus, employers with on-site employees could argue in favor of using the remote verification if a new hire will be working remotely. Secondly, an employer’s HR department may be operating remotely due to COVID-19 restrictions while the plant is operational as an essential business. In both situations one could arguably use remote verification and if audited by ICE, ask for forgiveness for this interpretation. It is always easier to seek forgiveness, rather than permission.

If you want to know more information on I-9 compliance and related issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.