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Summary of Answers at 8 on October 28, 2020

Recent Legal Updates:

Governor Cooper’s Executive Order 169 – Phase 3 extended

  • This original order began Friday, October 2nd at 5pm, taking NC into Phase 3 with caution. The Governor has now announced that this will be extended until at least November 13th due to an increase in cases and hospitalizations (which have reached the highest level in two months).
  • The CDC has adjusted the definition of “close contact” with a COVID-19 positive case. This adjustment makes it even clearer that 6-foot social distancing should be practiced at all times, even when wearing masks. At this time, an employee has had “close contact” when they are closer than 6 feet to someone for 15 minutes or more over a period of 24 hours.

Other topics covered in this week’s Answers at 8:

I-9 Forms during COVID-19

REMOTE VIEWING

  • If your company is taking physical proximity precautions and/or stay-at-home orders, and the employee is working remotely due to COVID-19, you are not required to view documents in the employee’s physical presence.
  • In this case, document your remote work policy and why it requires remote hire in each case, then attach a copy of it to each I-9.
  • There are NO changes to the employee process. They still must complete Section 1 of the I-9 before their hire date.
  • The employer completes Section 2 within 3 business days, as usual.
  • You must obtain, inspect AND COPY the documents – this could be via email, fax, or screen shot from online meeting, etc. Write “COVID-19” as the reason for the physical inspection delay in Section 2’s additional information field.
  • After the business resumes normal operations, the employee must present their documents in person within 3 business days and the employer should note “documents physically examined” with the date of inspection AND the person who conducted the physical inspection in Section 2’s additional information field, or on Section 3 (if appropriate).

EXTENDED EXPIRATION DATES

  • North Carolina has extended expiration dates for certain IDs. This included an automatic 5-month extension for drivers’ licenses that expired from March 1st to July 31st, as well as a state ID and CDL extension, which is longer term.
  • If documents are extended, they may be used on the I-9 in List B, and do not need to be re-verified upon the “delayed” expiration date.
  • Write “COVID-19 EXT” in Section 2 – Additional Information, and attach a copy of the website with the extension information to the I-9 form.

EXPIRED LIST B AS RECEIPT

  • Any LIST B documents that were not already extended as of May 1st may be treated as a receipt for the actual document.
  • Enter the document information in Section 2 and “COVID-19” in the additional information field.
  • 90 days after the temporary policy expires, the employee must present a valid unexpired document – preferably the same one, but different List A or B is also alright.
  • When you are looking at the new and valid document, you must record the new information in the additional information field and initial and date the change.

Exempt Pay Deductions: 

  • We see liability issues when employers:
    • Use sign-on bonuses without appropriate documentation and try to recoup later.
    • Allow exempt employees to choose to be off without pay in certain cases.
    • Deduct pay for property loss or damage.
    • With the FFCRA, paying an exempt employee 2/3 pay for a partial week absence may cause concerns if you don’t supplement for the week.
  • Exempt-from-overtime employees MUST be paid on a consistent weekly salary or fee.
  • Not paying the full weekly amount is only permissible when an exempt employee:
  1. is absent from work for one or more full days for personal reasons other than sickness or disability;
  2. for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
  3. to offset amounts employees receive as jury or witness fees, or for military pay;
  4. for penalties imposed in good faith for infractions of safety rules of major significance;
  5. for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.
  6. for time not worked in the initial or terminal week of employment,
  7. for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.
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