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I-9 Forms and Expired Documents – EEO Reporting – Workers’ Compensation Claims

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TEMPORARY POLICY ON EXPIRED LIST B DOCUMENTS FOR I-9 PURPOSES

The United States Citizenship and Immigration Services (USCIS) recently announced a “temporary” policy relating to the documents that may be presented by an employee for purposes of complying with Form I-9 policy in the wake of the continuing COVID-19 pandemic.

The USCIS recognized that newly hired employees may have challenges renewing their state driver’s licenses, state ID cards, or other identity documents as a result of the COVID-19 stay-at-home orders and DMV online renewal service restrictions. For this reason, beginning May 1st, List B identity documents set to expire on or after March 1, 2020, and not otherwise extended by the state’s issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes, which require follow-up for a replacement document within 90 days after the USCIS’ temporary policy has been terminated.

For example, if your employee provides an acceptable expired List B document that has not been extended by the issuing authority you should:

  • Record the document information in Section 2 under List B, as applicable; and,
  • Enter the word “COVID-19” in the Additional Information Field.

Then, within 90 days after the termination of this temporary policy, the employer must ask the employee to present a valid unexpired document to replace the expired document presented when they were initially hired.

When the employee later presents an unexpired document, the employer should do the following in the Section 2 Additional Information field:

  • Record the number and other required document information from the actual document presented;
  • Initial and date the change.

Expired List B document that has been extended by the issuing authority

Employers are reminded that when an expired List B document has in fact been extended by the state issuing authority, the employers are instructed to do the following:

  • Enter the document’s expiration date in Section 2; and,
  • Enter “COVID-19 EXT” in the Additional Information Field.
  • Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents. Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles’ website.

DMV EXTENDS EXPIRING DRIVERS LICENSES

The DMV, in a press release in April, announced that licenses for drivers younger than 70 that expire between March and May 2020 are now valid through May 31, 2020.

All commercial driver licenses, endorsements and certificates expiring between March and June 2020 are now valid through June 30, 2020, aligning with a recent emergency declaration from the Federal Motor Carrier Safety Administration. The extension does not include medical certificates for commercial drivers, which requires additional administrative actions scheduled in the near future.

Californians with a suspended license are not eligible.

The DMV continues to review and process online renewals and encourages drivers who are eligible to renew their license online to do so.

The extensions require no individual action on the part of drivers. Drivers will not receive a new card or an extension in the mail. As an option, drivers can request a free temporary paper extension online through DMV’s Virtual Field Office to document their extension.

Employers and employees should check the DMV’s website regarding current information on renewals and extensions on expired drivers license.

https://www.dmv.ca.gov/portal/dmv/detail/pubs/newsrel/2020/2020_15


EMPLOYERS GET EEO-1 REPORTING REPRIEVE

The EEOC has announced that the EEO-1 reporting process for those businesses required to turn in the EEO-1 data (employers subject to Title VII with 100 or more employees and federal contractors with 50 or more employees) would be delayed by a year, with the next reporting deadline pushed to March 2021.

“The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing.” “Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner.”

What Should Employers Do?

The agency recommended that covered employers should begin preparing to submit EEO-1 data from 2019 and 2020 in March 2021. The announcement said that the EEOC would notify businesses of the precise date that the surveys will open as soon as possible. Those subject to the EEO-3 and the EEO-5 should expect to provide their reports in January 2021. The EEOC said it would be directly reaching out to those businesses subject to the data collection requirements to inform them of the delay, so don’t be surprised to receive a communication in the near future.


GOVERNOR SIGNS EXECUTIVE ORDER REGARDING WORKERS’ COMPENSATION BENEFITS

On May 6th Governor Newsom issued an Executive Order that presumes most workers who contract COVID-19 after being in the workplace are entitled to workers’ compensation benefits.

Executive Order N-62-20 creates a “rebuttable presumption” that the worker contracted COVID 19 at work and should be provided workers compensation benefits. The Order states:

“Any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:

a.          The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;

b.           The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;

c.            The employee’s place of employment referenced in sub-paragraphs (a) and (b) was not the employee’s home or residence; and

d.           Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

The presumption will stay in place for 60 days after issuance of the executive order.

A copy of the Order may be found here:  https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf

The presumption may be disputed if the claim is challenged within 30 days after the claim is filed. After that 30 day period, the claim may only be disputed by new evidence discovered more than 30 days after the filing.

Benefits for COVID-19 related illnesses under the order include full hospital, surgical, medical treatment, disability indemnity, and death benefits. However, if an employee has paid sick leave benefits specifically applicable in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits or benefits under the Labor Code are due and payable. Employees can also be eligible for temporary disability or other Labor Code benefits from the date of disability. There is no waiting period for temporary disability benefits.


IMPORTANT NOTE AND DISCLAIMER:

Please note, the above summary is not an exhaustive explanation of the law on these issues. This newsletter is provided solely for informational purposes and is subject to change based on newly released and developing information. This newsletter should not be construed or interpreted as providing legal advice related to any specific matter.

The Firm is actively monitoring these changes and are available to provide any advice, guidance, and recommendations as we navigate these trying times together. The Firm is operational and available to address your concerns and questions. Should you have any questions or concerns, please feel free to contact me.


This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.