Category: COVID-19

Will Delta Keep You Off the Plane? Keeping Tabs on the Latest CDC Guidelines

We are so ready to put COVID-19 behind us, but unfortunately, the delta variant is keeping us on our toes.  So, for the time being, where do we stand, and what do we do now?

Amended CDC Guidance for the Fully Vaccinated

Last week, the CDC updated its guidelines to recommend (along with its prior guidelines that unvaccinated individuals should continue masking) that fully vaccinated individuals:

  • Should wear a mask in public indoor settings in areas of substantial or high transmission
  • Might opt to mask in public indoor settings regardless of the transmission level if they or someone else in their household are immunocompromised or at increased risk for severe disease
  • Who have a known exposure to someone with COVID-19 should be tested three to five days after the exposure, and wear a mask in public indoor settings for 14 days or until receiving a negative test result

School Settings and Travel

The CDC is recommending universal indoor masking for all teachers, staff, students and visitors in a school setting, regardless of vaccination status. As for travel, the CDC maintains that domestic travel is low risk for fully vaccinated individuals, although masking on public transportation in the United States remains required.

What Employers Are Doing

In response to the spiking case numbers and the fluctuating guidelines, many employers are revisiting their COVID-19 protocols. Facebook, Google, Ford, Walmart, and Walt Disney Company have recently mandated vaccines for certain employees. Additionally, the White House announced Thursday that it would require vaccines for federal employees. Other employers whose staff has not yet returned to the office are revisiting their plans to do so.

Takeaways

In the coming weeks, keep an eye on the fluctuating recommendations and especially the mandates in any locations where you have employees. If you are (re)considering a vaccination mandate, remember that you have to make exceptions for anyone who cannot receive it due to a medical issue or sincerely held religious belief; we blogged on this issue earlier here. Additionally, while you may ask about vaccination status, you want to be careful in how you ask and what you do with that information. If you’re uncertain about your COVID-19 protocol as it pertains to employment liability, give your lawyer a call.

© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 216
For more articles on travel, visit the NLRCoronavirus News section.

Can Employers Make COVID-19 Vaccinations Mandatory?

Now that the vaccines for COVID-19 are widely available in the United States, many schools are preparing for in-person instruction in the fall and more workplaces are starting to move away from remote work and bring their employees back into the office. Of course, many essential workers have remained in their workplaces throughout the pandemic. In order to protect their employees and customers from the pandemic virus, many employers in both the public and private sectors are requiring employees to get vaccinated before returning to work or as a condition of remaining at work. New York City has announced that all government employees need to get vaccinated by September 13, 2021, or else be subject to weekly COVID-19 testing.  President Biden announced a similar mandate – vaccine or testing – for federal government employees and contractors on July 29, 2021. The proliferation of employer vaccine mandates across the country has spawned a number of legal challenges by employees who want to keep their jobs but do not want to get vaccinated, and by unions who do not think such changes should be implemented unilaterally by employers. This blog explores some of the legal issues that federal and state courts will be addressing as these cases proceed.

Claims based on right to refuse “unapproved” COVID-19 vaccines

Plaintiffs in several lawsuits have argued – thus far unsuccessfully – that employers cannot impose vaccine mandates because the COVID-19 vaccines have only received Emergency Use Authorizations from the Food and Drug Administration, thus rendering the vaccines “unapproved” and “experimental.” Employees at Houston Methodist Hospital in Texas (Bridges v. Houston Methodist Hospital), Dona Ana Detention Center in New Mexico (Legaretta v. Macias), and Los Angeles County schools in California (California Educators for Medical Freedom v. Los Angeles Unified School District) have all argued that their employers’ requirements that they get the COVID-19 vaccine or face termination amounts to compelling them to participate in a medical experiment in violation of their rights under federal law.

Plaintiffs in all three cases point to 21 U.S.C. § 360bbb-3, a law governing the Secretary of Health and Human Services’ ability to grant Emergency Use Authorization to drugs or medical devices that have not received full approval from the FDA. The law says that the HHS Secretary must establish conditions to ensure that anyone who administers a product under an Emergency Use Authorization must inform patients “of the option to accept or refuse administration of the product, [and] of the consequences, if any of refusing administration of the product,” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III). The plaintiffs claim that this law gives them a right under federal law to refuse the vaccine, and that any employer mandate to the contrary is unenforceable. Some of the plaintiffs point to other sources of law to claim a right to refuse vaccination. For instance, the New Mexico plaintiffs pointed to Griswold v. Connecticut and Roe v. Wade, two famous Supreme Court cases holding that the constitution recognizes a right to privacy that encompasses access to contraception and abortion. They argue that this same right prohibits the Dona Ana Detention Center from terminating their employment if they refuse the vaccine. The California and Texas plaintiffs pointed to the Nuremberg Code of 1947, international laws adopted in the wake of the Holocaust that prohibit forced medical experimentation without informed consent. The plaintiffs basically have argued that the employers’ vaccine mandates are tantamount to the horrifying medical experiments conducted by Nazi doctors on concentration camp prisoners.

There is little chance that these arguments will be met with any sympathy by courts.  Contrary to the claims of the plaintiffs, the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission both recognize that federal law does not prevent employers from imposing vaccine mandates. The CDC website says: “The Food and Drug Administration (FDA) does not mandate vaccination. However, whether a state, local government, or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” Similarly, the EEOC says that “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” so long as employers allow for legally required reasonable accommodations for employees with disabilities or religious beliefs that do not allow for vaccinations. Furthermore, the Supreme Court first held more than 100 years ago, in its 1905 decision in Jacobson v. Massachusetts upholding a state law requiring smallpox vaccination, that the Constitution does not provide a right to opt out of vaccine mandates in the midst of a public health crisis. Accordingly, lower courts are unlikely to hold that there is a constitutional right to opt out of employer vaccine mandates in the midst of the COVID-19 pandemic.

The only court to weigh in on one of these cases has shown no patience for these arguments. On June 12, 2021, the United States District Court for the Southern District of Texas dismissed all of the claims brought against Houston Methodist Hospital, bluntly stating that the plaintiffs’ efforts to portray themselves as unwilling participants in medical experiments misstate the facts, and that any analogy to Nazi experimentation in concentration camps is “reprehensible.” Looking at Section 360bbb-3, the Court held that the statute only regulates the conduct of the HHS Secretary and does not create any rights that a private individual can enforce in a lawsuit. Furthermore, the Court noted that none of the plaintiffs are actually being coerced into taking the vaccine. Rather, the Hospital gave them the option to refuse the vaccine and told them the consequence of their refusal, namely, that they would be terminated from their job. “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.”

Claims based on religious and disability discrimination

Even though employees will likely not be able to show that employer vaccine mandates violate federal law, particular employees may be able to show that they have a right to opt out of an employer vaccine mandate based on their religious beliefs or medical conditions. For example, in Coronado v. Great Performances Artists As Waitress Inc., Antonio Coronado, a service worker, brought claims under the New York State and New York City Human Rights Laws in state court, claiming his employers’ decision to place him on furlough until he got vaccinated violated his “religious and ethical convictions” and discriminated against him “based upon his physical condition.” There are likely to be similar lawsuits brought by employees all over the country under federal, state, and local anti-discrimination laws. Although the court has not yet weighed in on Mr. Coronado’s complaint, the EEOC has provided guidance that will help show how such claims are likely to fair under the federal laws prohibiting employment discrimination on the basis of religion, Title VII of the Civil Rights Act of 1964, and disability, the Americans with Disabilities Act. Check out our blog post, “COVID-19 Vaccinations: What Employees and Employers Need to Know” to learn more.

Other vaccine mandate developments to come

Although most vaccine mandate litigation is focused on federal law concerning Emergency Use Authorization and anti-discrimination law, some opponents to vaccine mandates are taking other approaches. For instance, a case filed in the United States Court for the Northern District of Illinois argues that the employer’s imposition of a vaccine mandate – even one that allows accommodations for employees’ religious beliefs and disabilities – alters the terms and conditions of employment in violation of Collective Bargaining Agreements entered into by the plaintiff-union. See International Brotherhood of Teamsters, Local 743 v. Central States, Southeast and Southwest Areas Health and Welfare Pension Fund. This claim sidesteps any argument about the vaccine approval process as well as the employer’s legitimate interest in promoting workplace safety. Instead, the claim characterizes the employer’s vaccine mandate, which requires unvaccinated employees to use all of their paid time off and then face discipline (up to and including termination) unless and until they get vaccinated, as imposing a new restriction on the union members’ employment without going through the negotiation process required by the agreements and federal law protecting union rights. For instance, the National Labor Relations Act requires an employer to collectively bargain in good faith with the union over subjects that directly impact “rates of pay, wages, hours of employment, or other conditions of employment.” 29 U.S.C. §§ 158(a)(5); 159(a). The Teamsters Union argued that the employer’s unilateral imposition of the vaccine mandate creates a new “condition of employment,” and requirements on how employees must use their paid time off unlawfully circumvented the mandatory bargaining process. It remains to be seen how the court will handle this claim, but other unions with members opposing vaccine mandates are likely to bring similar claims if the Teamsters Union has any success here.

Some state legislators opposed to vaccine mandates are circumventing courts altogether and are proposing state laws that outright prohibit COVID-19 vaccine mandates. While many such laws are still under consideration, two states have successfully enacted laws curtailing employers’ ability to require their employees to get vaccinated. On April 28, 2021, Arkansas enacted Act 977, which prohibits any state or local agency or entity from requiring a COVID-19 vaccine as a condition of employment, education, entry to facilities, receipt of services, or issuance of a license, certificate, or permit. Ark. Code § 20-7-142. Montana went even further.  As of May 7, 2021, it is unlawful in Montana for any private or government employer to discriminate against any employee based on the employee’s vaccination status or possession of an “immunity passport,” although health care facilities are allowed to inquire about employees’ vaccination status and implement reasonable accommodations to protect employees and patients from any dangers posed by non-vaccinated employees. See Mont. Code Title 49, Chapter 2, Part 3. It remains to be seen if employers or employees seeking a safe workplace will challenge these state laws in court, and how courts will weigh an employer’s interest in workplace safety against the state’s interest in regulating commercial activity and protecting individuals against employer restrictions.

As more employers demand their employees get vaccinated and courts weigh in on existing lawsuits, the tactics of legal resistance to vaccine mandates are sure to adapt and change.

Katz, Marshall & Banks, LLP

Article By Joseph E. Abboud of Katz, Marshall & Banks, LLP

For more articles on COVID-19 vaccines, visit the NLR Coronavirus News section.

Immigration Weekly Round-Up: NJ Driver’s Licenses Skyrocket; White House Seeks Speedier Processing at Border and With Asylum Cases; COVID Restrictions to Continue at U.S. Border

New Jersey Sees Dramatic Increase in Driver’s Licenses after Permitting Undocumented Individuals to Apply

The state of New Jersey has seen a more than 60% increase in new driver’s licenses issued since May 1, as the new state law took effect law that permitted residents to obtain licenses regardless of immigration status. The Motor Vehicle Commission (MVC) does not keep records of immigration status and thus could not confirm the cause of the increase. However, a rise of 100,000 total licenses issued over the past three months, from the typical 60,000 over the same period in previous years, is likely fueled in significant part by the new law.

Although more driver’s licenses have been issued, backlogs have also increased, with some people now waiting several weeks for appointments to receive their licenses. Immigrant rights activists have expressed frustration over the delay, with the New Jersey Alliance for Immigrant Justice stating that the “MVC had nearly 3 years of notice and more than enough time to engage advocates and the community to prepare.” The MVC has indicated that it plans to add personnel to its facilities to make more appointments available and increase awareness of online resources so that many people can avoid unnecessary in-person trips.

President Biden Aims to Expedite Asylum Processing

This week, the White House announced a broad new set of initiatives dedicated to streamlining the adjudication of asylum applications in the United States while also increasing the use of expedited removal of detained noncitizens while entering the United States without documentation.

The Biden administration stated that it had established a separate docket in the immigration court system to handle asylum applications to help manage the extensive backlog of cases throughout the United States. President Biden has also requested funding in next year’s budget for an additional 100 immigration judges and new support staff and asked for $15 million in funding to support pro bono legal services for immigrants facing removal proceedings. Meanwhile, President Biden has called to expand the expedited removal process, allowing immigration officers to order a noncitizen’s removal from the United States even before that person has seen a judge, coming within the larger stated goal of strengthening border security.

COVID-19 Border Restrictions to Remain in Place

The White House has delayed implementing a plan for a partial rescission of a policy instituted by the Trump administration following the onset of the COVID-19 pandemic that permitted border officials to summarily expel immigrants at the U.S./Mexico border in an attempt to stem the spread of the coronavirus. President Biden cited the new dangers of the Delta variant as the reason for the delay.

President Biden is facing pressure on both sides of his party on this issue. Many Democrats have urged Biden to ease this policy, arguing that it prevents a proper review of whether immigrants have a legitimate claim to remain in the United States. California Democrat Judy Chu told Reuters news that “they’re just indiscriminately rejecting people and sending them back.” However, other Democrats, such as Henry Cuellar of Texas, have stated that the focus must be on the safety of border communities and stopping undocumented entry into the country.

The White House did not immediately make clear when it would revisit the policy.

©2021 Norris McLaughlin P.A., All Rights Reserved

Article By William C. Menard at Norris McLaughlin P.A. For more Immigration News see the National Law Review Immigration Law section.

COVID-19 Fears Prompt State Department ‘Do Not Travel’ Advisory for UK, Other Restrictions Continue

The State Department, in coordination with the CDC, raised its Travel Advisory for the United Kingdom to “Do Not Travel” because of COVID-19 (Level IV).

Coincidentally, the Department’s move came on the same day Prime Minister Boris Johnson lifted most COVID-19-related restrictions in the United Kingdom (yet, excluding Wales, Scotland, and Northern Ireland). He made this move as the case numbers are rising because most adults in the United Kingdom are fully vaccinated.

Despite the United Kingdom lifting its restrictions, the European Union has opened its borders to individuals from the United States (with various restrictions). Further, Canada is about to open its borders to fully vaccinated U.S. citizens and permanent residents. Moreover, the White House reported that the United States will not be lifting travel restrictions due to the spread of the Delta variant. Press Secretary Jen Psaki said that it is not clear how long the restrictions will last. As of July 23, 2021, the CDC announced that the seven-day average of COVID-19 cases in the United States was up over 46 percent from the prior week.

Therefore, despite lobbying efforts aimed at increasing summer tourism from Europe, the Presidential Proclamations restricting travel to the United States due to COVID-19 are likely to remain in effect throughout the tourist season and beyond. The travel restrictions were imposed more than a year ago, in January 2020, when President Donald Trump instituted the ban on travel from China. Further bans were instituted in 2020 and 2021 on individuals travelling from Iran, the United Kingdom, Ireland, the 26-member countries of the Schengen Zone, Brazil, South Africa, and, more recently, India. To overcome these restrictions those who need to travel to the United States but are subject to the bans must either “camp-out” in a non-banned country (if they can enter such a country) for 14 days before attempting to enter the United States or they must apply for and receive a National Interest Exception (NIE) to the relevant ban. Eligibility for NIEs is set forth in a web of complex and changing guidance from the Department of State and Customs and Border Protection.

Employers all over the country are suffering due to the bans. Their key employees cannot travel back and forth from or to the United States for important business purposes. The highly skilled or temporary, seasonal workers they need to boost their businesses and the economy cannot be hired. This is compounded by the fact that most U.S. consulates abroad are extremely back-logged and understaffed due to COVID-19.

Jackson Lewis P.C. © 2021

CDC Changes Masking Guidance for Fully Vaccinated Individuals

The Centers for Disease Control (CDC) announced on July 27, 2021 that it will adjust its advice to recommend that vaccinated people in substantial or high transmission areas of COVID-19 (defined below) wear masks in indoor public spaces. This guidance will substantially alter the CDC’s May 13 guidance that largely exempted fully vaccinated individuals from the indoor mask requirement. There has been no change in the outdoor masking recommendations at this time. In changing its masking recommendations, the CDC asserts that current scientific information indicates that the delta variant can be spread despite vaccine status, warranting an adjustment to its prior guidance.

Below is a summary of the updated guidance based on the media telebriefing:

  • In public indoor settings in areas of substantial or high transmission, all are to wear masks – including fully vaccinated individuals.
  • All individuals in K-12 schools must wear a mask, regardless of vaccination status, including teachers, staff, and visitors.
  • There should be a continuing effort to strongly encourage vaccination to reduce the spread of COVID-19, including the delta variant.
  • Community leaders should encourage universal masking and vaccination nationwide, regardless of whether or not in a substantial or high transmission area.

Despite the updated guidance, CDC Director Dr. Rochelle Walensky emphasized that wearing a mask is a “personal choice” and no “stigma” should attach to the decision whether or not to wear a mask. Moreover, Dr. Walensky acknowledged that the renewed indoor masking requirement would “weigh heavily” with individuals who are already fully vaccinated. The White House has not provided additional comment on the CDC guidance as of this writing.

The definition of a substantial or high transmission area is based on the CDC’s COVID-19 Data Tracker, which tracks the level of community transmission by county nationwide. Notably, the updated guidance does not apply to areas of moderate or low transmission.

While the CDC guidance is not mandatory, employers are advised to evaluate their workplace policies to determine the extent to which it may be prudent to alter workplace masking requirements. Additionally, states and cities are free to institute their own legally binding masking requirements, regardless of the CDC guidance. Employers are advised to closely monitor state and local developments. We also note that it is unclear what, if any, impact the CDC guidance will have on OSHA’s recent healthcare emergency temporary standard for healthcare employers or its enforcement of its safe workplace standards.

©2021 von Briesen & Roper, s.c

Article By John A. Rubin and Robert J. Simandl at von Briesen & Roper, s.c.

For more CDC COVID-related guidelines, see the National Law Review Coronavirus News section.

SBA Will No Longer Require PPP Loan Necessity Questionnaire

In a notice sent to lenders in early July, the Small Business Administration (“SBA”) informed lenders that it is eliminating the Loan Necessity Questionnaires (the “Questionnaires”) for Paycheck Protection Program (“PPP”) loans of $2 million or greater.

The SBA’s notice stated that it would no longer request either Form 3509 (for for-profit borrowers) or SBA Form 3510 (for not-for-profit borrowers). Moreover, Questionnaires previously requested by the SBA are no longer required to be submitted and lenders have been advised to close any open requests for additional information related to Questionnaires.

The changes are effective immediately, but the SBA said it would release an FAQ shortly with more details.

© Polsinelli PC, Polsinelli LLP in California
For more articles on PPP loans, visit the NLRCoronavirus News section.

Immigration and Compliance Briefing: COVID-19 Summer Scoop & Quick Tips

Since March 2020, the U.S. Department of Homeland Security (DHS), Department of State (DOS), and Department of Labor (DOL) have issued and/or revised a significant number of rules and policies in response to the global COVID-19 pandemic. Below is a roundup of the current rules/policies covering the major areas of global mobility impacted by COVID-19.

International Travel

U.S. Land Borders

  • Canada: The border between the U.S. and Canada remains closed until July 21, 2021 except for essential workers and services. As of July 5, fully vaccinated Canadian citizens, permanent residents, and certain exempted individuals are not required to quarantine upon entry or undergo an 8-day COVID test.
  • Mexico: The border between the U.S. and Mexico remains closed until July 21, 2021 except for essential workers and services.

The U.S. land borders have been closed since March 21, 2020. While the border closures are currently set to expire on July 21, they may be extended for additional 30-day periods. As a reminder, the following types of travel/travelers are exempt from the restrictions:

  • U.S., Canadian, and Mexican citizens and permanent residents returning to their home country
  • Individuals traveling for medical purposes (e.g., to receive medical treatment)
  • Individuals traveling to attend educational institutions
  • Individuals traveling to work in the U.S.
  • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders)
  • Individuals engaged in lawful cross-border trade (e.g., truck drivers transporting cargo between the U.S., Canada and Mexico)
  • Individuals engaged in official government or diplomatic travel
  • Individuals engaged in military-related travel or operations

Geographical Travel Bans

Entry into the U.S. is prohibited, with some exceptions, for most travelers who have been in any of the following countries at any time within the past 14 days (including transit):

  • China; Iran; European Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City); United Kingdom (England, Scotland, Wales, Northern Ireland); Republic of Ireland; Brazil; South Africa; India

Exceptions to this ban include, but are not limited to:

  • U.S. Citizens and Lawful Permanent Residents (LPRs)
  • Certain family members of U.S. citizens
  • Diplomatic Travelers
  • Individuals traveling with an approved National Interest Exception (NIE)

QUICK TIP: The current COVID-19 travel bans are based on physical presence and do not ban citizens or residents of any country.

QUICK TIP: Even a layover/connecting flight in an impacted countries is enough to trigger the entry ban, so if traveling to the U.S. from a non-banned country, travelers are advised to double-check their itineraries to ensure that they do not inadvertently become subject to the ban.

National Interest Exceptions

Travelers and their derivative beneficiaries who would otherwise be subject to the geographic travel ban may request a National Interest Exception (NIE) based on their visa type and/or their intended purpose of stay in the United States.

QUICK TIP: Effective July 6, 2021, the DOS announced that approved NIEs are valid for 12 months and multiple entries. This policy applies retroactively to travelers granted an NIE within the prior 12 months. Previously, NIEs were valid for a single entry within 30 days of approval.

On June 24, 2021, the DOS updated its guidance on NIEs, including categories of individuals who are automatically considered for an NIE at ports of entry and those who may apply for an NIE at the U.S. Consulate.

Individuals automatically considered for an NIE include:

  • Immigrants (those seeking permanent residence in the U.S.)
  • Fiancé(e)s of U.S. citizens and their dependents (K visas)
  • Students (F and M visas)

Note: New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including Optional Practical Training (OPT)

Individuals who may apply for an NIE include:

  • Certain J-visa holders (exchange visitors, students, and academics; Educational Commission for Foreign Medical Graduates (ECFMG) participants)
  • Journalists
  • Travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains
  • Travelers providing vital support or executive direction for significant economic activity in the U.S.
  • Travelers whose purpose of travel falls within one of these categories: 1) Lifesaving medical treatment for the principal applicant and accompanying close family members; 2) Public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research); 3) Humanitarian travel, including those providing care, medical escorts, and legal guardians
  • Travelers whose work is in the national interest of the U.S.
  • Derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive an NIE

Individuals who are automatically considered for an NIE at a port of entry do not need to apply for the NIE at their consulate in advance of their travel. Those who believe they may be eligible for an NIE should contact their local consulate for instructions.

QUICK TIP:  Approved NIEs may be noted directly in a visa or an applicant may be notified via email that they have received a digital approval. Both formats are equally valid, and travelers are advised to carry copies of the application materials and confirmation of approval with them when they travel.

I-9 Compliance

Extended Flexibility

For employees hired between June 1, 2021 and August 31, 2021, Immigration and Customs Enforcement (ICE) has temporarily waived the in-person I-9 document inspection requirement for employers that are fully remote due to COVID-19. Initially implemented on March 20, 2020, this guidance has been extended in 30 to 60-day increments since and may be extended after August 31.

To avoid inadvertent I-9 regulatory violations, employers should note the following:

  • As of April 1, 2021, an employer may utilize the flexible I-9 guidelines even if some employees are present at the worksite. However, this flexibility ends once the employee begins non-remote work on a regular, consistent, or predictable basis. This guidance does not extend to remote employees whose employment is normally remote, but only applies to remote employees who are temporarily remote due to COVID-19.
  • Prior to April 1, 2021, these guidelines applied only to employers and workplaces operating fully remotely due to COVID-19. If employees were present at the worksite, no exceptions were permitted. This guidance did not extend to remote employees whose employment is normally remote, but only applied to remote employees who are temporarily remote due to COVID-19.
  • Within three days of the remote employee returning to regular in-person employment or the termination of the flexible guidelines, whichever is earlier, the employer must physically inspect any I-9 documents that were inspected electronically in reliance on this policy. Failure to timely physically inspect these documents constitutes an I-9 violation.

QUICK TIP:  To avoid missing the three-day deadline, employers may begin the physical I-9 document inspection for individual employees prior to the return to in-person employment.

QUICK TIP:  To avoid I-9 compliance violations, employers are encouraged to conduct regular internal I-9 audits and periodically review the M-274 Handbook for Employers, guidance for completing Form I-9.

Ongoing COVID-19 Flexibilities

Additional Time For Responding To Agency Requests

On June 24, 2021, U.S. Citizenship and Immigration Services (USCIS) extended its policy granting additional time to respond to the following types of agency requests as long as they were mailed by the agency between March 1, 2020 and September 30, 2021:

  • Requests for Evidence
  • Continuations to Request Evidence (N-14)
  • Notices of Intent to Deny, Revoke, Rescind, or Terminate
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5

If a response to an eligible USCIS request and/or notice is received within 60 days of the stated deadline, then USCIS will consider the response prior to making a final determination.

Refiling Certain Applications Due To Delayed Rejection From USCIS Lockbox

Due to COVID-19, USCIS Lockbox facilities are experiencing significant delays in intake and processing of immigrant and nonimmigrant applications and petitions. In some cases, delayed rejections can prevent an applicant from timely refiling or cause an applicant to “age out” of a benefit. Therefore, for certain applications filed at a USCIS Lockbox between October 1, 2020 and August 9, 2021, the agency has issued the following guidance:

  • For applicants whose application was rejected solely because the filing fee expired due to USCIS Lockbox delays, the applicant may refile and USCIS will deem the application to have been received on the date the initial application was received. USCIS will also waive the $30 dishonored check fee.
  • For applicants, co-applicants, beneficiaries, or derivatives who aged out of eligibility for the requested benefit due to a delayed rejection from a USCIS lockbox, the applicant may refile and USCIS will deem the application to have been received on the date the initial application was received. This does not apply to Form N-600K, Application for Citizenship and Issuance of Certificate.

QUICK TIP:  Both petitioners and applicants should periodically review the USCIS COVID-19 Response webpage (https://www.uscis.gov/about-us./uscis-response-to-covid-19) and the websites of other government agencies for up-to-date information on guidance on COVID-19 related policies and flexibilities.

Form I-539 Biometrics

On May 3, 2021, USCIS announced that it will suspend the biometrics requirements for I-539 applicant categories (H-4, L-2, E-1, E-2, E-3) for a two-year period beginning on May 17, 2021. The suspension applies to Form I-539 applications that are 1) pending on May 17, 2021, and have not yet received a biometric services appointment notice, or 2) new applications received by USCIS from May 17, 2021, through May 23, 2022.

© 1998-2021 Wiggin and Dana LLP
For more articles on COVID-19 travel restrictions, visit the NLRImmigration section.

Should Virtual Depositions Survive the Pandemic? The Answer is Yes and No.

As the “new normal” of pandemic virtual legal proceedings appears to be waning, a question arises as to which, if any, practices initially born out of necessity, but no longer so, should continue to be utilized. One such device previously employed sparingly, but which became de rigueur during COVID, is the virtual deposition. In some but not all circumstances, virtual depositions can remain an effective tool for litigators.

The critical considerations in determining whether to continue using this mechanism will hinge on the purpose of the deposition and the stature of the particular witness. For example, if a deposition is being conducted for basic discovery purposes, i.e., understanding the broad strokes of a dispute, or determining generally what the opposing side knows or has, it might make sense to conduct it virtually. What may be obtained from such witnesses over video-link likely would not be enhanced by conducting the depositions in person. Moreover, the technical hiccups sometimes incidental to a video deposition, such as audio deficiencies and temporarily frozen screens, likely would not diminish the value of such “low-stakes” testimony.

But, if the purpose is to obtain testimony that will be presented to a trier of fact, there is no substitute for a live deposition. Like cross-examining an opponent’s witness during a trial, being in the same room to control that witness without the delay of a video feed or the interference of opposing counsel who may be present with the witness while you are not, makes a world of difference. Due to the unavailability of witnesses, cases may be won and lost during depositions. Consequently, it is important to treat these depositions as if you are eliciting trial testimony. Doing so live will give you the best chance at a successful examination.

A second important consideration is the stature of the witness. A virtual deposition would certainly be appropriate for a low ranking company employee with no ability to bind an organization, or a document custodian whose elicited testimony would likely be mechanical in nature. However, the deposition of a critical fact witness, high-ranking company official, or corporate designee most definitely should be conducted live, if possible. There simply is no substitute for looking a witness in the eyes during questioning to gauge their credibility, or obtaining a face-to-face assessment of their composure and demeanor. That type of evaluation is simply not possible over a video-link, particularly given the possibility of technical mishaps.

These considerations should not be viewed in a vacuum, of course. For more and more clients, a primary concern is legal cost containment. For those attorneys with national practices, being able to conduct the video deposition of a witness who resides on the other side of the country surely will provide significant cost savings for such a client. Similarly, a busy litigator’s life will be made easier by having the option of deposing a witness virtually, rather than committing to otherwise avoidable travel time.

Like most legal conundrums, the answer to this question is not clear-cut. But, having options like those outlined above to address the different types of witnesses and circumstances will increase the likelihood of eliciting valuable testimony.

©2021 Epstein Becker & Green, P.C. All rights reserved.
For more articles on depositions, visit the NLR Litigation / Trial Practice section.

England’s Current COVID-19 Quarantine Travel Entry Rules

The United Kingdom is operating a traffic light system for foreign travel, and what passengers must do upon arrival in England depends on where they have been in the 10 days before they arrive.

This article focuses on the guidance for England. Separate guidance applies to Northern Ireland, Scotland, and Wales.

The quarantine rules differ depending on what list the country or territory that the passenger is travelling from is on—red, amber, or green. Note that the rules apply to vaccinated passengers as well.

Red List Countries

Only British citizens, Irish citizens, and those with UK residence rights are able to enter England if they have visited or transited through a red list country in the 10 days prior to arrival.

Passengers travelling from a red list country or territory must abide by the following requirements:

  • Passengers must take a COVID-19 test within the three days prior to departure to England and provide proof of a negative test result in order to travel. Passengers may be fined £500 if they arrive in England without proof of a negative test result.
  • Passengers must undergo 10 full days of quarantine in a government-managed hotel (arrival day in England does not count toward 10-day requirement). Before travelling to England, passengers must book and pay for a managed quarantine hotel within the 14 days prior to arrival. The booking includes passengers’ hotel stay, meals, transportation to and from the hotel, and two COVID-19 tests, which must be taken on the second and eighth days of the quarantine period. Passengers who have not booked a ‘quarantine package’ prior to arrival in England could ‘face a penalty of up to £4,000 and will still have to pay for [a] quarantine package on arrival’.
  • Passengers must arrive at an authorised airport. Currently, the only authorised airports are Heathrow Airport, Gatwick Airport, London City Airport, Birmingham Airport, Bristol Airport, Farnborough Airport, and Biggin Hill Airport, although ‘[o]ther ports of entry may be added in the future’. Passengers whose flights are due to arrive at a different airport must reschedule them to an authorised airport, or face a penalty of up to £10,000 and transportation costs to the nearest designated port of entry.
  • Passengers must submit an online ‘passenger locator form’ in the 48 hours prior to arriving in England. The form is intended to provide a passenger’s journey and contact details. Passengers will need to book and pay for a quarantine package before completing a passenger locator form, as the form requires details of where the passenger will quarantine once they arrive in England. The guidance stipulates that passengers ‘could be fined, imprisoned or both if [they] do not provide accurate details about the countries [they] have visited in the 10 days before [they] arrive in the UK’.

Amber List Countries

Before travelling to England from an amber list country or territory, passengers must:

  • take a COVID-19 test within the three days prior to departure (proof of a negative test result is required in order to be able to travel to England),
  • book and pay for two COVID-19 tests to be taken on the second and eighth days after arrival in England, and
  • complete an online passenger locator form.

Upon arrival in England, passengers must:

  • quarantine at home or in the place they are staying for 10 days;
  • take a COVID-19 test on the second and eighth days of the quarantine period, which passengers are required to schedule prior to departure as mentioned above (children aged four years old and under are not required to take these tests).

Green List Countries

Before travelling to England from a green list country or territory, passengers must:

  • take a COVID-19 test within the three days prior to departure (proof of a negative test result is required in order to be able to travel to England),
  • book and pay for a COVID-19 test to be taken on the second day after arrival in England, and
  • complete an online passenger locator form.

Passengers must take a COVID-19 test on the second day after they arrive in England, which they are required to book prior to departure as mentioned above. Passengers do not need to quarantine unless they receive a positive test result.

These lists are reviewed every three weeks and a country or territory can move between lists at short notice. Passengers may therefore want to review the guidance for updates before they travel.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on travel restrictions the NLR Immigration section.

How Law Firms Can Invest in Employee Wellbeing Through E-Relationship Building

The COVID-19 pandemic highlighted the need for an increased focus on mental health in the legal industry. In a recent webinar from GCC Portfolio, Renee Branson, a principal at RB Consulting and Executive Director at the Sexual Assault Resource Agency, Deborah Knupp, Managing Director at GrowthPlay and Lisa Buchanan, Director of Marketing and Creative Services at GCC Portfolio discussed the importance of mental health and E-relationship building at law firms.

The coronavirus pandemic provided an opportunity to speak about mental health in a way that allowed it to be destigmatized. Many in the industry were experiencing the same feelings of anxiety and depression. As a result, the legal industry recognized mental health was something that needed to be discussed.

To address the issue of mental health in the legal industry, law firms need to understand what the biggest issues are, how to address them, and how to get support from leadership to tackle those issues.

What are the Biggest Mental Health Issues in the Legal Industry?

With many in the legal industry beginning to return to the office, Ms. Branson said she’s seen higher levels of anxiety, guilt, and ambivalence among workers. These feelings manifest in social reluctance among employees, as well as an increased need for remote work flexibilities.

“What we have experienced really is a trauma,” Ms. Branson said. “First of all, frame it for what it is.”

Ms. Knupp said there is a phenomenon called the “shadow pandemic” emerging as a long term effect of the coronavirus pandemic. This shadow pandemic encompasses feelings of mortality, neurological disorders, and other mental health consequences of the COVID-19 pandemic that are expected to last for years.

“We’re going to see a broad expanse of different things,” Ms. Branson said. “For folks who had COVID, we still don’t know the long term neurological and mental health impacts of surviving that illness.”

For those who haven’t experienced COVID-19 firsthand, what the shadow pandemic could reveal are long term feelings of trauma. Ms. Branson said that once the pandemic subsides and people begin to feel a sense of security, they then begin to process the trauma they experienced during lockdown.

“That processing can take a short amount of time, or it can take years,” Ms. Branson said. “The way to keep that from feeling really overwhelming is to not add on really high expectations to yourself and others.”

Investing in mental health education for those in the legal industry is one way to help leadership be better coaches, issue spotters and counsel for their organizations and clients. This involves staying connected with clients to keep mental health issues a top priority. To achieve this, Ms. Branson said she utilizes what she calls a resilience library with six “books” that address mental health issues.

“One of those books is Connection,” she said. “When we feel disconnected from people and feel a lack of belonging and an inability to be authentic to ourselves, whatever burden we’re carrying feels twice as heavy. If they have a connection with someone that they can rely on, it helps ease [that burden].”

The law firms that are the most successful in addressing mental health issues are those that listen and adapt. Even though the coronavirus pandemic was a huge disruption, it also gave law firms the opportunity to adapt and examine their processes in order to better accommodate their employees’ needs.

“It’s really challenging right now because we do have this great ability to connect but also Zoom fatigue is real. We have to find new and different ways to stay connected…[especially] with small groups of folks, whether that’s done virtually or in person,” Ms. Branson said. “It’s about listening and being able to respond when you can.”

How Law Firms Can Connect Through E-Relationship Building

To tackle the issue of mental health during the pandemic, law firms need to be creative and innovative in the ways they reach out to employees. E-relationship building includes team-based activities, events, and communications. Ms. Buchanan said that one of the biggest changes GCC saw in the past year was law firms showing appreciation to their employees by acknowledging their hard work during challenging times.

With many feeling Zoom burnout, electronic and virtual communications are one way law firms are engaging with their employees and showing appreciation. These communications can be as simple as sending individual messages letting employees know they’re appreciated.

“It can be so impactful for a firm to say ‘thank you’ because we’re all having a rough time,” Ms. Buchanan said. “Little things can be so impactful… and make a huge difference in somebody’s life.”

Ms. Buchanan said the pandemic affected the way firms think in terms of focusing on small gestures instead of bigger initiatives. Investing in ways to give employees appreciation shows that the firm is focused on their wellbeing.

“I’m just blown away by the fact that our firms are so forward in being part of [mental health],” she said. “The law industry seems to be taking it and moving forward.”

How to Start Mental Health Initiatives at Law Firms

Even if employee mental health and wellbeing is top of mind for law firms, it can be a challenge to get leadership on board. One way to stress the importance of mental health initiatives is to highlight the impact poor mental health can have on productivity.

“Either spend a certain amount of time addressing feelings and mental health, or we’re going to spend a lot of time [addressing] inefficiencies and lack of productivity,” Ms. Branson said, quoting author and researcher Brené Brown. “These things really do have bottom line impacts.”

Ignoring mental health issues impacts both client relationships and a law firm’s finances. To deal with issues of decreased productivity, firms should focus on innovative ways to communicate with employees. Ms. Buchanan said firms who used GCC for holiday cards get input back from employees.

“Letting the firms be creative in the way that they want to portray who they are is the first thing,” Ms. Buchanan said. “It’s also a connection and letting their clients and people know ‘we see you.’ Just little touch points are really important.”

What Can Law Firms Do to Focus on Mental Health Moving Forward?

The coronavirus pandemic offered an opportunity for law firms to put an increased focus on mental health. Acknowledgement, education, acceptance, and understanding of mental health issues validates those who are struggling, and helps remove the stigma. By acknowledging mental health, firms will help improve their bottom line while also investing in their employees’ wellbeing.

“It starts at the top,” Ms. Buchanan said. “If you’ve got a leader in the firm that gets [mental health], you’ve got so many options.”

For law firms looking to prioritize their employees’ mental health, focusing on E-relationship building is a good place to start. With many firms still working remotely, Ms. Knupp emphasized that there hasn’t been a better time to reach out to employees and start an initiative.

“This is the time to let people know that you see them,” she said. “No matter what you do, be a kind human to humankind.”

Watch the full webinar here: GCC Presents Mental Health & E-Relationship Building

Copyright ©2021 National Law Forum, LLC
ARTICLE BY Rachel Popa of The National Law Review / The National Law Forum LLC
For more articles on the legal industry, visit the NLR Law Office Management section.