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While most companies are going through a period of layoffs, furloughs, and terminations, other companies are in a position to hire additional workers or replacement workers for people who no longer want to come to work. The onboarding of employees is proving to be a challenge for many human resources departments who are working remotely or trying to limit interpersonal interaction in the workplace in light of the COVID-19 crisis. Part of that onboarding process is the successful completion of the IRS Form I-9 and, as you can imagine, the completion of that form can be difficult in the era of remote working and social distancing.
As a result, the Department of Homeland Security (DHS) relaxed its I-9 requirements for employers operating remotely. Please note that the DHS’s relaxed requirements apply only to employers who are operating remotely. If there are employees present at a work location, companies must follow the normal inspection rules. However, on a temporary basis, companies operating remotely are no longer required to review an employee’s identity and work authorization documents in the employee’s physical presence. For a limited period of time, employers can inspect these documents remotely – be it by Zoom, FaceTime, fax, or email. The guidance states that if “employers are performing inspections remotely (e.g., over a video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business days of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.” This allows an employer to meet its Form I-9 obligations without physically coming into contact with a new employee.
Again, this is just a temporary adjustment of the obligations. As a result, at some point in the future when “normal operations resume,” all employees whose documents were reviewed remotely must, within three business days, have a physical inspection of their documentation. When you conduct the physical examination, the guidance requests that you write the words “documents physically examined” in the Additional Information box in Section 2 and also include their name and the date of inspection in that box. If you have any questions about these relaxed rules, DHS’s guidance, or any questions not covered in the guidance, please contact Attorney Michael J. Bogdan (mbogdan@www.kwgd.com).
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.