Compliance News Flash - May 2020 #2

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Arnall Golden Gregory LLP is pleased to provide you with the Compliance News Flash, which includes current news briefs relevant to background screening, immigration and data privacy, for the benefit and interest of our clients as well as employers and consumer reporting agencies generally.

  • U.S. Citizenship and Immigration Services (USCIS) announced it will resume premium processing for Form I-129 and Form I-140 petitions during the month of June. On March 20, 2020, USCIS announced the temporary suspension of premium processing requests due to COVID-19. The suspension will be lifted in phases, with USCIS resuming premium processing for new categories of petitions at the beginning of each week of June. Click here to read more about USCIS’ phased return to premium processing.
  • U.S. Immigration and Customs Enforcement (ICE) has extended its flexibility regarding the physical presence requirement of the Form I-9. On March 19, 2020, the Department of Homeland Security (DHS) announced that employers taking social distancing precautions due to COVID-19 would not be required to review an employee’s identity and employment authorization documents in the employee’s physical presence (as is required for purposes of section 2 completion of the Form I-9). Originally set to expire on May 19, 2020, this flexibility has been extended for an additional 30 days such that it will expire June 18, 2020. Once normal operations resume, employees who were on-boarded during this time must report to their employer within three business days for in-person verification of the document(s) presented for section 2 of the Form I-9. Also, it is important for employers to understand that although the in-person requirement is currently waived, the Form I-9 must still be completed within three business days of hire. Click here and here to read more.
  • U.S. Immigration and Customs Enforcement (ICE) has granted an additional 30 day extension for employers to respond to notices of inspection (NOIs) served by ICE during the month of March 2020. On March 19, 2020, ICE announced that employers who had not yet responded to NOIs that were served during the month of March 2020 would be granted an automatic extension of 60 days beginning March 19, 2020. The additional extension is for 30 days such that it will expire June 18, 2020. Click here to read more.
  • The Equal Employment Opportunity Commission (EEOC) released an updated version of its 2009 publication titled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. The publication was originally issued during the spread of the H1N1 virus and has been re-issued to incorporate updates regarding the COVID-19 pandemic. The publication sets out the following guidance regarding pre- and post-offer medical checks:
    • Before a conditional offer of employment is made, the Americans with Disability Act (ADA) prohibits employers from making disability-related inquiries and conducting medical examinations of applicants.
    • After a conditional offer of employment has been made, but before an individual begins working, the ADA permits employers to make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations. The employer may not rescind a job offer based on the results of this post-offer medical examination unless the applicant would pose a “direct threat” within the meaning of the ADA. Additionally, based on current CDC guidance which states that an individual with COVID-19 should not be in the workplace, an employer may delay the start date of an applicant who has COVID-19 or related symptoms, or may withdraw an offer altogether if the employer needs the individual to start immediately but the individual has COVID-19 or related symptoms.
    • During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (i) an employee’s ability to perform essential job functions will be impaired by a medical condition, or (ii) an employee will pose a direct threat due to a medical condition. Click here to read more.
  • Recently passed by the House, the Heroes Act (H.R. 6800), includes a provision which would place a temporary moratorium on the ability of consumer reporting agencies to furnish certain adverse information. Section 110401 of the Heroes Act would amend the changes the CARES Act made to the Fair Credit Reporting Act by adding, “[n]o person may furnish any adverse item of information (except information related to a felony criminal conviction) relating to a consumer that was the result of any action or inaction that occurred during a covered period,” with “covered period” referring to the COVID-19 emergency. The bill now awaits consideration in the Senate and the public may contact their Senators with concerns by contacting the U.S. Capitol Switchboard at (202) 224-3121. Click here for the text of the bill.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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