As the COVID-19 outbreak evolves, Constangy has created this resource page for employers, to stay abreast of the latest guidance and provide answers to frequently asked questions. 
This resource center is made available for educational purposes only, to provide general information and not to provide specific legal advice or to establish an attorney-client relationship. Further, the issues related to COVID-19 are constantly evolving. There have been substantial changes in the governmental guidance and even in the underlying laws on almost a daily basis, which will impact the analysis of the legal issues related to COVID-19. As such, this resource center should not be used as a substitute for up-to-date legal advice from an attorney licensed in your state.

General Updates & Information

Federal Government Information & Updates

State & Local Government Information & Updates

Attorney Taskforce

Lawyers across Constangy are prepared to assist clients in this constantly changing landscape.

Feel free to call any of the lawyers below or any other Constangy lawyer of your choice: 

FAQs (Updated: 4/6/20)

Exposure to Coronavirus

What should employers think about if an employee may have had exposure to COVID-19?

Do employers have to report a positive case of COVID-19 to OSHA?

No, COVID-19 cases are not automatically reportable to OSHA.  The only COVID-19 cases that have to be reported to OSHA are work-related:

A COVID-19 case must be recorded on an OSHA 300 Log if:

COVID-19 is work-related if it is more likely than not that the work environment either contributed to or caused the illness.  COVID-19 is probably not work-related under this test if an employee lives with someone who has COVID-19 or has contact away from work with someone who has been diagnosed with COVID-19. 

What are an employer’s obligations to an employee who is under government-imposed quarantine?

Coronavirus Symptoms

When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

What if an employee confirms that they have COVID-19?

Teleworking 

Does telework have any special considerations under the FLSA?

What other considerations should employers think about when allowing or requiring employees to telework?

Attendance/Leave Issues

May an employer require an employee who is not exhibiting COVID-19 symptoms but who has been in contact with an individual with COVID-19 or is in a potential incubation period (e.g., after returning from travel to an area of risk, as noted by the CDC) to use his or her vacation time and/or other PTO for the absence?

An employee comes to work with symptoms of COVID-19, and has been exposed or has traveled to a high-risk location. Can the employer send them home?

Would a sick employee qualify for leave under the Family and Medical Leave Act (FMLA)?

Can an employee stay home under FMLA leave to avoid getting coronavirus?

Some employees may not be able to come to work because they have to take care of sick family members. May an employer lay them off?

Is an employer required by law to provide paid sick leave to employees who are out of work because they have coronavirus, have been exposed to a family member with coronavirus, or are caring for a family member with coronavirus?

Can an employee refuse to come to work?

Compensation Concerns

Does an employer have to pay exempt employees during office, plant, or facility closures related to COVID-19? Non-exempt employees?

Can an employer force employees who are not sick to use PTO or sick leave time from employees while offices, plants or facilities are closed?  

Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)?

May employers change their paid sick leave policy if a number of employees are out and they cannot afford to pay them all?

How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed? If an employer directs salaried, exempt employees to take vacation (or leave bank deductions) or leave without pay during office closures due to influenza, pandemic, or other public health emergency, does this impact the employee’s exempt status?

Are there concerns if we need to lay off employees or have to close or suspend portions of our business?

In the event an organization bars employees from working from their current place of business and requires them to work at home, will employers have to pay those employees who are unable to work from home?

In the event an employer brings on temporary employees from a staffing agency to supplement its workforce due to staffing shortages, is the employer liable if the temporary employees are not paid in accordance with the wage requirements of the FLSA?

Travel Questions

Can we restrict work travel to affected areas?

What current travel restrictions are in place?

What about personal travel?

Can I travel by land or ferry across the Northern border to Canada or the Southern border to Mexico during the COVID-19 pandemic?

Immigration

Due to the constantly evolving nature of the COVID-19 pandemic, we will attempt to provide you with the most current information regarding Department of Homeland Security (DHS), which includes updates from US Citizenship and Immigration Service (USCIS), Customs & Border Protection (CBP), Immigration & Customs Enforcement (ICE), and Department of State (DOS), which includes updates from US Consulates and Embassies abroad.

Will the H-1B cap subject petition selection process proceed as scheduled? 

Will employers be able to utilize premium process for selected FY 2021 cap subject petitions?

I am a U.S. Citizen and / or a permanent resident, can I travel abroad?  Will I be admitted to the U.S. upon my return?

Who is admissible to the U.S. during the COVID- 19 related travel ban?

These travelers whose flights are from one of the European countries will enter the U.S. through 13 selected airports (see below) who have partnered with CDC to conduct health screenings.

If exempt from the Presidential Proclamations, will I still face restrictions upon trying to enter the U.S.?

Can travelers returning from the restricted countries fly into any airport?

Upon arriving in the U.S. from a restricted country, travelers can expect to undergo an enhanced medical interview that includes questioning regarding their medical history and current symptoms, if any. They will be required to provide their contact information to local health authorities. Additionally, some passengers will have their temperature taken. Passengers who are not symptomatic will be provided with written guidance about COVID-19 and permitted to proceed to their final destinations. Passengers who are symptomatic for COVID-19 will be referred to the CDC for medical evaluation.

If repatriating, will I be admitted upon my return home?

Will the U.S. consulate abroad conduct my scheduled immigrant/non-immigrant visa interview?

Most up to date information can be found here.

Is U.S. Citizenship and Immigration Services (“USCIS”) conducting biometrics and interview appointments?

If you were admitted to the U.S. under the Visa Waiver Program (VWP) and your 90-day duration of stay is due to expire and you cannot leave the U.S. due to COVID- 19 related issues, is there any way to extend the status and stay in the U.S.?

Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

How do I prepare Form I-9 if our company has instituted a formal or informal remote work policy and we must onboard a number of new hires?

What if our company was served with Notice of Inspection (NOI) by Department Homeland Security in March 2020?

What type of Notices to employees are required by USDOL regulations in connection with employer-sponsored immigration filings and how to comply during a facility closure?

Are H-1B Employees Permitted to Work from Home during the Facility Closure?

a) In addition to the Company worksite, the Labor Condition Application (LCA) should be posted at the employee’s home for the requisite 10 consecutive business day period and then stored in the employer’s Public Access File.

b) If the employee’s home is not within the same metropolitan statistical area (“MSA”) as the Company facility, then a new LCA must be prepared and generally an amended Petition must be filed. In most cases, a new LCA and an amended Petition will not be required because an MSA is defined as the normal commuting distance to the place of employment for the H-1B. While there is no rigid distance, the regulations say that might be 20, 30 or 50 miles.

What if a petitioner or beneficiary is unable to produce an original signed form or supporting document for a USCIS filing (including H-1B petitions)?  Will USCIS accept copies in light of the COVID-19 Pandemic? 

Will premium processing continue during the COVID-19 pandemic?

Is there any way to expedite my case since there is no premium process available?

Yes, you may ask USCIS to expedite the adjudication of an application or petition for an immigration benefit. Each case will be reviewed on a case-by-case basis. 

In order for USCIS to consider an expedite request, it generally must meet one or more of the following criteria:

It is important to note, that all expedite requests claiming severe financial loss, regardless of the immigration benefit sought and regardless of whether the claimed loss is to a company or a person, must present documentation to establish the loss and that the requestor is not able to withstand the temporary financial loss that is the natural result of normal processing times

What changes have been made to the E-Verify process as a result of COVID-19?

Has USCIS provided any flexibility for Responses to Requests for Evidence or Notices of Intent to Deny?

Under the new public charge rule, if a US permanent resident employee applies for unemployment benefits, will it impact their citizenship application in the future?

No.  An application for, or receipt of, unemployment  benefits are not considered by USCIS to be a factor in the public charge analysis for those applying for citizenship in the future.

The following is a non-exhaustive list of public benefits that USCIS does not consider in the public charge inadmissibility determination as they are considered earned benefits:

What if a petitioner or beneficiary is unable to produce an original signed form or supporting document for a USCIS filing (including H-1B petitions)?  Will USCIS accept copies in light of the COVID-19 Pandemic? 

What is the status of the FY 2021 H-1B cap lottery?

Has USCIS provided guidance to temporary visa holders in the US who cannot depart before their status expires?

Miscellaneous

What should unionized employers be thinking about?

Are there discrimination issues employers should be thinking about as well?

What other precautions can employers practice?

Are there workers' compensation concerns?

Are there any unemployment benefit implications? 

If my company needs to eliminate jobs or shifts as a result of the pandemic, do we have to renegotiate our collective bargaining agreement?

Would a no-strike clause impact any effort by employees to refuse to work because of the pandemic?

What effect do shelter-in-place or stay-at-home orders have on business operations?

Other Helpful Resources 

National Governors Association Summary: What Steps Have States Taken To Address Coronavirus

DOL Fact Sheet Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues

Occupational Safety and Health Administration Website 

OSHA Guidance on Preparing Workplaces for COVID-19

Centers for Disease Control and Prevention Website 

CDC Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission 

CDC - Keeping the Workplace Safe 

U.S. Department of Labor Guidance on Preparing Workplaces for Coronavirus 

World Health Organization Website 

University of Nebraska Medical Center Travel Guidance 

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