From our friends at AILA:
Practice Alert: Changes in Work Conditions Impacting H-1B Workers During the COVID-19 Outbreak
AILA Doc. No. 20032631 | Dated March 26, 2020
AILA’s Department of Labor (DOL) Liaison Committee offers the following quick reference with common scenarios and tips to evaluate and consult on the matters discussed below during this unique period in history.
DOL regulations require employers to continue to abide by the labor conditions to which they agreed when filing the H-1B petition. These are the terms set forth in the underlying ETA Form 9035, Labor Condition Application (LCA). More relevantly, these concern payment of the required wage, full-time vs. part-time status of the employee, and notice to employees in the area of intended employment. Please note that these requirements also apply to H-1B1 and E-3 nonimmigrants as well.
1. Does an Employer need to continue to pay the required wage set forth in the LCA?
DOL regulations require employers to pay the wage set forth in the LCA. In response to the ongoing COVID-19 outbreak, many local and state governmental authorities are instituting shelter in place orders to augment the mantra of self-regulated social distancing. This, in combination with the fact that the fortunes of some companies have dipped since the COVID-19 outbreak has affected U.S. and global economies especially in the stock market. This impact has prompted some employers to evaluate and assess their business operations. Employers are asking what happens should they decide to suspend, furlough, layoff, reduce hours, or otherwise render their employees unproductive during the crisis.
As and when these actions affect foreign national employees in H-1B classification, questions arise for counsel as to how employers would be able to place this class of worker in non-productive status while simultaneously maintaining compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status.
Non-productive status is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), per 20 CFR 655.731(c)(7)(i) the employer continues to be obligated to pay the required wage. On the other hand, an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience (e.g., touring the U.S. or caring for ill relative) or because they are unable to work (e.g., maternity leave or automobile accident which temporarily incapacitates the nonimmigrant) due to a reason which is not directly work related and required by the employer. Of course, per 20 CFR 655.731(c)(7)(ii), the employer would still have to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).
2. Can an employer furlough, bench, or otherwise render an H-1B employee non-productive and stop offering the required wage if the employee is not able to work from home during a COVID-19 pandemic initiated shelter in place order from federal, state, or municipal government authorities?
No, this is not permissible given that the conditions are not created by the employee. In this situation, an employer must continue to offer the required wage. Otherwise, an employer could be exposed to liability such as fines, back wage obligations, and in serious cases debarment from the DOL’s temporary and permanent immigration programs for a period of time. Per 20 CFR 655.810(d), debarment prohibits the USCIS from approving immigrant and non-immigrant petitions filed by the employer.
3. Is an employer required to pay the required wage if the employee is afflicted with COVID-19, consequently unable to work and is placed into isolation and quarantine during treatment?
The regulations do not require an employer to pay the required wage if an employee is not able to work due to a reason which is not directly work related and required by the employer. That said, if an employer has policies in place where a COVID-19 positive employee would have to remain in quarantine, there is an argument to be made where the employer must continue to pay the employee given that the quarantine rule is created and imposed by the employer. An employer should also be aware that it could be subject to required payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.) nonetheless per 20 CFR 655.731(c)(7)(ii). Employers should also keep an eye to any additional federal legislation passed regarding employers’ obligations during this national emergency.
4. What steps does an employer have to take if it wants to convert an H-1B employee from full-time to part-time status?
An employer seeking to convert a full-time H-1B employee to part-time must file a new LCA to reflect this change. Once a new LCA is required, the employer is required to file an amendedH-1B petition. The employee is permitted to commence part-time employment upon the receipt of the H-1B petition by the United States Citizenship and Immigration Services (USCIS).
AILA has requested that the agency suspend or waive the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in the H-1B worker’s employment pursuant to Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) if the change in workplace is in response to the COVID-19 outbreak.
5. What steps does the employer have to take to terminate its obligation to pay the required wage?
20 CFR 655.731(c)(7)(ii) states that payment of the required wage obligation need not be made if there has been a bona fide termination of the employment relationship. Per 8 CFR 214.2(h)(11), DHS regulations require the employer to notify USCIS that the employment relationship has been terminated so that the petition is canceled. 8 CFR 214.2(h)(4)(iii)(E) requires the employer to provide the employee with payment for transportation home under certain circumstances. Additionally, an employer is responsible for paying for the return transportation cost of the employee if the employer terminates the employee prior to the end of the petition period. For additional information, see DOL’s Wage and Hour Division’s Fact Sheet #621.
As a reminder, an employee may be able to avail themselves of the shorter of a 60-day grace period or the remainder of the approved petition duration as provided for under 8 CFR 214.1(l)(2) to seek to change employer, change status, and extend stay in the United States.
6. If an employee starts to work from home, what does the LCA require in regards to notice?
On March 20, 2020, DOL’s Office of Foreign Labor Certification offered guidance on the notice requirement in question 4 of the guidance. In particular, OFLC provides clarity for those seeking to understand notice requirements in order to move workers to a worksite unintended at the time of filing the LCA.
The DOL Liaison Committee continues to monitor the impact of COVID-19 on DOL operations and on employers and are engaging with the DOL to seek further guidance and accommodations.