Human resource professionals all know of the obligation to complete a Form I-9 to verify the identity and employment authorization of a newly hired employee. To verify a newly hired employee’s identity, the employee must present the employer with acceptable documents, which the employer must then examine to determine whether the documents reasonably appear to be genuine and relate to the employee. To do this, the employer representative must physically touch and examine the documents in the presence of the employee.
 
Because of COVID-19, physically touching documents presented by a new employee is not possible when your workforce is working remotely. While the I-9 requirement continues, the United States Department of Homeland Security (“DHS”) announced it will defer the physical presence requirements associated with reviewing Form I-9 documents for employers and workplaces operating 100 percent remotely. But, if there are employees physically present at a work location, the exception does not apply. For employers and workplaces operating exclusively remotely, DHS provided this guidance for completing the Form I-9:
 

• Employers operating fully remotely will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.
• But, employers must still inspect the employee’s identification documents remotely through video link, fax, or email, etc. and obtain, inspect, and retain copies of the documents. The review of the remotely received documents must occur within three business days of the employee starting work. Based on the review of the documents, employers should complete Section 2 and enter “COVID-19” as the reason for the physical inspection delay in the Additional Information field.
• Within three days after normal operations resume (i.e., when remote working is no longer necessary), all employees who were onboarded using remote verification must physically report to their employer (or an employer representative) for in-person verification of identity and employment eligibility documentation. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection in the Section 2 Additional Information field on the Form I-9, or to Section 3.
• Employers who use this remote I-9 option must maintain written documentation of their remote onboarding and teleworking policy. This could include the communication to employees they would be working remotely because of COVID-19. This documentation should be kept with any Form I-9 completed remotely.
• Employers working remotely may use these remote verification procedures until May 19, 2020, or within three business days after the termination of the National Emergency, whichever comes first.

 
Employers not working 100 percent remotely must still comply with the in-person verification requirements for completing the Form I-9. This could still pose questions if a newly hired employee is subject to a quarantine or other lockdown order. The DHS’s guidance simply states it will evaluate these issues “on a case-by-case basis.” For now, however, employers with a partially remote workforce may need to get creative and instruct employees who have never completed a Form I-9 to complete the in-person verification and employer sections of the form.

If you have any questions, please contact our COVID-19 Task Force.