By Daniel L. Herrington
Employers familiar with the federal form I9 know that the Authorized Representative must physically inspect the documents presented by the employee so that she may attest the documents appear genuine and relate to the new employee. The employee must also be physically present. That has presented a problem for employers with remote workers. At least for now, there is a temporary solution, but only for those employers working remotely due to the COVID-19 pandemic.
The Department of Homeland Security announced that employers may inspect identity and employment authorization documents remotely (video, fax, email, etc.) until May 18, 2020. The employer may also retain the copy of the I9 temporarily. There are conditions, however.
First, your company must be operating remotely due to the crisis. The rule does not apply to employers operating with employees physically present. Second, if HR is remote or there are other issues related to COVID-19 that prevent in person inspection of the documents (i.e., social distancing restrictions have been mandated, newly hired employee or HR employee are subject to quarantine or lockdown), you may be able to use this option on a case-by-case basis.
The three day rule still applies. That means employers must remotely inspect the documents within three days of the employee’s start date. Employers using E-Verify, either voluntarily or because you are a covered government contractor, should still start a case within three business days. Once normal operations resume, you have three business days for in-person verification.
The employer has the burden of proving this option was necessary. You should enter “COVID-19” as the reason for the delay once the inspection takes place after normal operations resume. When you are able to inspect the documents in person, you should add “documents physically examined” in the “additional information” box on page two. If the original Authorized Representative is not available, a new Section 2 must be completed and signed. And, the documents presented do not have to be the same. The employee always retains the right to present any document on the list of acceptable documents.
Click here to read the press release from DHS.
Our attorneys are here to assist you with I9 compliance, pandemic response, or any other employment law need during this unprecedented crisis and beyond.
Daniel L. Herrington is a partner in the Labor and Employment Relations Practice Group focused on representing employers in all areas of labor and employment law, including ADA, FMLA, Wage and Hour, Title VII, OSHA and NLRA.
Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.