Federal, state, and local governments are working around the clock to implement various measures in the midst of the COVID-19 crisis. Additionally, a number of federal agencies and departments are also taking action in response to the outbreak. For employers across the nation, it is undeniably an unstable and unclear time, with no concrete signs of when there will be a sense of normalcy again. However, in the meantime, we compiled a list of some of the agencies with brief descriptions of their issued guidance and/or responses for employers to take note of.
Office of Federal Contract Compliance Programs (OFCCP):
On March 17, Director Craig Leen issued a memorandum announcing the OFCCP will grant a three-month exemption and waiver from some of its standard requirements for federal contractors responding to the COVID-19 pandemic. The exemption and waiver apply to new construction and supply and service contracts and extends from March 17 to June 17, and potentially longer if an extension is warranted based on the status of the crisis.
Specifically, Director Leen granted an exemption and waiver from the following requirements:
- all affirmative action obligations;
- on-site compliance evaluations;
- certain reporting requirements; and
- specific posting and notice requirements.
However, the exemption and waivers do not apply to the processing of complaints of discrimination and also do not exempt a covered contractor from their obligation to comply with other federal, state, and local civil rights laws.
Equal Employment Opportunity Commission (EEOC):
The EEOC also weighed in on COVID-19’s impact last week, tackling some common areas of concern for employers. The publication, titled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19,” takes the form of a Q&A and addresses what employers may or may not do without violating provisions of the Americans with Disabilities Act (ADA) or the Rehabilitation Act.
Among the recommendations, the EEOC advises as follows:
- employers may ask employees if they are experiencing symptoms of COVID-19, provided that the information is kept confidential;
- employers may measure employees’ body temperature despite it being considered a medical examination;
- employees can be told to stay home or leave work if they become ill with symptoms of COVID-19;
- employers can require employees returning to work to provide a doctor’s note or certification of some sort stating they are fit for duty and can return;
- employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job;
- employers can delay start date on a job offer if the applicant tests positive for COVID-19 or has symptoms of it; and
- employers can withdraw a job offer if an applicant needs to start immediately but the individual tests positive for COVID-19 or has symptoms of it.
Department of Homeland Security (DHS):
DHS announced temporary modifications to the employer review requirements for Form I-9 documents. Specifically, on March 20, DHS announced that it will defer the physical presence requirements, wherein employers and employees working remotely and 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 physical presence.
However, employers must still inspect Section 2 documents remotely and via video conference, fax or email, and obtain and retain copies of the documents within three business days. Employers are instructed to enter “COVID-19” as the reason for the physical inspection delay in the additional information field in Section 2. These provisions may be implemented for a period of 60 days or within three business days after the termination of the national emergency, whichever comes first. The burden also rests solely with employers to provide written documentation of their remote onboarding and telework policy if they choose to avail themselves of this option.
Once normal operations resume, all employees who were on-boarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9.
DHS emphasized that this option is 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.
National Labor Relations Board (NLRB):
In light of the crisis, the NLRB has moved to an agency-wide telework policy for all employees until at least April 1. Several Regional Offices have also been closed, with limited operations at others. Additionally, the NLRB also approved the suspension of all representation elections, including mail ballot elections, through April 3.
As of March 23, all regional personnel will continue to handle unfair labor practice investigations and processing representation petitions. The NLRB noted that additional guidance regarding future hearings and elections will be issued at a later date but advised parties to continue to e-file documents as necessary.
Department of Labor (DOL):
DOL’s Employment and Training Administration also issued guidance that outlines flexibilities that states have in administering their unemployment insurance programs. While each state administers a separate unemployment insurance program, all states follow the same guidelines established by federal law. DOL’s guidance allows states to amend their benefits to include coverage where a business temporarily ceases business due to COVID-19, an individual is quarantined, or an employee leaves due to risk of infection. Businesses should refer to their individual state unemployment programs to confirm how unemployment practices may have changed due to COVID-19.
The Labor & Employment Group at PilieroMazza will continue to monitor agencies’ responses to the ever-evolving crisis and will provide updates accordingly. In the meantime, employers should take note of some of the short-term relief provided by the agencies noted above and adapt their policies and practices accordingly. We encourage employers to also stay on top of further updates out of these agencies, as well as updates from governments on the federal, state, and local levels. If you need assistance in navigating through the COVID-19 crisis, please contact a member of PilieroMazza’s Labor & Employment Group. We also invite you to visit the Firm’s COVID-19 Client Resource Center to access resources that will help businesses during this challenging time.