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Medicare Part D Notices – An Overview for Employers

Employers and their group health plan sponsors will want to mark October 15, 2020 on their calendars. This is the deadline for plan sponsors to disclose to individuals who are eligible for Medicare Part D and to the Centers for Medicare and Medicaid Services (CMS) whether the health plan’s prescription drug coverage is creditable.

Although this responsibility primarily falls on group health plan sponsors, there are several important things that employers should be aware of that we’ll cover in this post:

  • What is Medicare Part D?
  • Where can resources and model notices can be found?
  • Other timing and delivery rules to be aware of

What Exactly Does “Creditable Coverage” Mean, and How Is It Related to Medicare Part D?

“Creditable Coverage” is a term that involves two simple words, but most people have a hard time understanding what exactly it means in the world of Medicare.

A notice of creditable coverage is simply an official document given to an employee from their employer (or union) that states whether their prescription drug coverage plan is equal to or better than the prescription drug coverage provided through Medicare.

This notice helps the employee make decisions related to their benefits, as remaining under their employer’s prescription drug plan might be very advantageous for them as they approach retirement. For plans that are not creditable, employees should generally move to Medicare as this will save them money from future late-enrollment penalties in the future. Medicare allows employees who choose to stay on plans that are creditable to avoid these penalties should they choose to enroll later on.

In order for CMS to have an official record of an employer’s or union’s status as creditable or non-creditable, employers must disclose that status both to their Medicare Part D eligible employees as well as the CMS. Employers should work with their group health plan sponsors to send this notice, and it must be done by October 15th.

What Resources and Model Disclosures Exist?

Fortunately, the CMS has provided two model notices that employers can use:

  1. A model notice of creditable coverage when the health plan’s prescription drug coverage IS creditable. (click here to access this model).
  2. A model notice of non-creditable coverage when the health plan’s prescription drug coverage IS NOT creditable (click here to access this model).

Technically, employers do not have to use these model notices. However, if the models are not used, the notices still must include certain information. These requirements include a disclosure about whether the plan’s coverage is creditable, explanations of what creditable coverage means, and an explanation of why employees should take their coverage decisions seriously.

Employers and their group health care sponsor should strongly consider using these models. It’s the simplest way to make the disclosures and ensure that the required language is used. Another best practice is for employers and their group health plan sponsors to provide this notice to all plan participants, even to those that might not be qualified for Medicare Part D. This way, the employer can ensure that they “cover all their bases” and that they educate employees who will have to make this decision several years in the future.

What Other Rules Should You Be Aware of?

Employers should not that the most important time of year to deliver Part D Notices is prior to the Medicare Part D annual election period, which goes from October 15th to December 7th each year. However, there are other situations in which an employer or their group health plan sponsor must give this notice to an employee:

  • Whenever a beneficiary requests the notice
  • Whenever there is a change in an employer’s health plan that changes whether the plan is creditable or non-creditable
  • Before the effective date of coverage for any Medicare-eligible individual who joins the plan

As we stated in the previous section, it’s not a bad idea to provide Part D notices at multiple times throughout the employment life cycle. Part D notices can even be included in new enrollment materials for employees.

It is important for employers to understand the rules about printed notices and electronic notices. A single printed notice may be delivered to an address, even if multiple beneficiaries of the plan live at that address. However, if it is known that a beneficiary of the plan lives at a separate address, a second printed notice must be sent to that address. Electronic notices can be compliant as well, assuming the employee has regular access to the electronic documents at their regular place of work.

From an official perspective, the Department of Labor (DOL) has three requirements for electronic delivery of Part D Notices:

  1. The plan administrator uses appropriate and reasonable means to ensure that the system for furnishing documents results in actual receipt of transmitted information.
  2. Notice is provided to each recipient, at the time the electronic document is furnished, of the significance of the document.
  3. A paper version of the document is available on request.

As we stated very early in this post, a notice must also be sent to the CMS in addition to the beneficiaries of the plan. This disclosure to the CMS must be delivered on an annual basis, and the following timeline requirements apply – the notice must be provided:

  1. Within 60 days after the beginning date of the plan year for which the entity is providing the form.
  2. Within 30 days after the termination of the prescription drug plan.
  3. Within 30 days after any change in the creditable coverage status of the prescription drug plan.

Key Takeaways

Part D Notices, or notices of “Creditable Coverage,” are simply an official document given to an employee from their employer (or union) that states whether their prescription drug coverage plan is equal to or better than the prescription drug coverage provided through Medicare. The purposes of these notices is to help beneficiaries of the plan make the best decision for their prescription health coverage moving forward.

Here are additional key takeaways related to these notices:

  • The Centers for Medicare and Medicaid Services (CMS) provide sample notices that employers should consider using.
  • Employers should work with their group health plan sponsors to ensure that these notices are delivered at the right time – which might end up being more frequently than you think.
  • The notices can be provided electronically under certain circumstances.

U.S. Department of Labor Issues Important FFCRA Regulations

The moment we have all been awaiting over the last several weeks has finally arrived. The U.S. Department of Labor (DOL) has issued important regulations that clarify and revise who can qualify for emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA).

In this urgent update, we’ll cover the following:

  • What is the background behind this important announcement by the DOL
  • What specific clarifications and revisions were made
  • What this means for your business moving forward

What is the background behind this important FFCRA announcement?

In April, U.S. District Judge Paul Oetken issued a ruling that found the DOL had exceeded its authority by blocking workers from FFCRA leave when their employer didn’t have any work for them to perform.

The challenge to this aspect of the FFCRA was originally put forward by New York Attorney General Letitia James, who also challenged the DOL’s interpretation of the FFCRA’s exclusion for healthcare providers, the rule’s limits on intermittent leave, and certain documentation requirements outlined in the language of the act.

Since Judge Oetken’s ruling, many employers have been left without clear guidance when trying to implement the new, but extremely important, FFCRA.

Hopefully the DOL’s clarifying announcement will be a light in the dark for employers who are trying to juggle many aspects of the fallout from the COVID-19 pandemic.

What specific clarifications and revisions were made?

The revisions, which were specifically made to the regulations that implemented the paid sick leave and expanded family and medical leave provisions of the FFCRA, do the following:

  • Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
  • Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

To ensure we communicate this information to our readers accurately, the above bullet points were taken directly from the DOL’s announcement about these important revisions, which can be read in its entirety by clicking here.

What does this mean for your business moving forward?

Friday’s announcement reaffirms the DOL’s stance that leave under the FFCRA can only be taken if the employer actually has work for the employee to do. This is important, especially for businesses who have taken a hit during this pandemic. If an employer legitimately doesn’t have any work for the employee to do, they are allowed to reject the employee’s FFCRA leave request.

The DOL also remained firm in its original interpretation of intermittent, or periodic, leave under the FFCRA. Intermittent leave, according to this now clarified rule, is only allowed when the employee gets permission from their employer.

According to Friday’s announcement, “The Department believes the employer-approval condition for intermittent leave under its FMLA regulation is appropriate in the context of FFCRA intermittent leave for qualifying reasons that do not exacerbate risk of COVID-19 contagion. It is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid ‘unduly disrupting’ the employer’s operations.”

In addition to the previous two clarifications, the DOL revised the definition of “Health Care Provider” to mean, “employees who are health care providers…and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” This clarification was necessary because Judge Oetken had found that the agency’s previous definition was too broad and potentially excessively cut off workers from using FFCRA leave.

Employers in the health care industry should understand that this revised definition of “Health Care Provider,” – and the exclusion of health care providers in the first place – was done to, “provide a safety valve to ensure that critical health and safety services would not be understaffed during the pandemic.”

These revisions will officially take effect on Wednesday, September 16th. Keep in mind that the FFCRA will remain in place at least through the end of 2020. Assuming the pandemic has not ended by 2021, expect an expansion of the FFCRA to continue into next year.

Key Takeaways

Employers’ heads might be spinning after reading this announcement. This is important news that will have significant impacts on the workforce of many businesses and industries over the next few months. Employers should now feel that they have more leverage when it comes to dealing with employee FFCRA requests.

Here are the most important takeaways from this announcement:

  • If you legitimately don’t have enough work for your employees to do (which very well might be the case if your business has been suffering during the pandemic), then you can deny employee requests for FFCRA leave under this new clarification from the DOL.
  • Employees can only take intermittent leave if they have permission from their employer.
  • Healthcare workers should understand that they might be excluded from the FFCRA.
  • Employers should be aware that these revisions take effect as of Wednesday, September 16, 2020.

Key Considerations for Business Leaders as Schools Decide to Reopen or Stay Remote

As the COVID-19 situation continues to wear on, every school district in the country has been forced to make difficult decisions, many of which can easily be perceived as “lose-lose” due to the complexity of the ever-changing COVID regulations. Remote learning is certainly not ideal as it can force parents to stay home from work, and in-person learning comes with the obvious risks of exposing children and teachers to the virus.

Employers are caught in the middle of this issue as they try to understand the Families First Coronavirus Response Act (FFCRA or Act) and how it applies to their employees with school age children at home.

This post is designed to provide some guidance to the millions of employers who now face the dilemma of how to best approach this situation.

In this post, we’ll cover:

  • What things CAN you do to better understand the situation that your employees find themselves in.
  • What things you must NOT do while trying to make leave decisions because they violate the FFCRA or other regulations.
  • Things to consider as you weigh the pros and cons of certain FFCRA-related decisions.

Green Light: Things You CAN Do

If you are an employer or HR administrator who is tasked with making FFCRA leave decisions for employees whose children are starting the school year, the first thing you need to do is understand the specific situation of each employee who submits an FFCRA leave request. Fortunately, there are some questions that you are allowed to ask and other pieces of information you are allowed to request from your employee:

  • You are allowed to ask how old the employee’s child or children are. If the child or children are age 15 or older, you can and should require that the employee provide a statement or affirmation that there are special circumstances that cause the older child to need their care. If the employee is unable to make such a statement or affirmation, then you can deny their FFCRA leave if the children are over 15.
  • You are allowed to request from your employee the name of their child or children’s school, place of care, or caregiver that is closed or unavailable due to COVID-19. In the case of a closed school, you can contact the school district to confirm plans that the school has made, whether it’s in-person learning, remote learning, or a hybrid option. Remember, FFCRA leave is not available for the parents of a child whose school is open for in-person attendance. If the child is home not because his or her school is closed, but because the parent has chosen for the child to remain home, the parent is not entitled to FFCRA paid leave.
  • Some employees may ask about the possibility of bringing their children to the office with them. Depending on the nature of your workplace, this is a possibility that you may want to consider. However, you should consult with an attorney or trusted insurance broker that is familiar with the kind of licensing and insurance that would be required to do this.

Most importantly, try to keep an open channel of communication with your employees. If your employees can see that you are there to support them, they will be much more willing to discuss compromise and alternatives such as only requesting a few hours off each day in the morning or afternoon. Alternatives like this can still allow your employees to get significant work done – which can make a world of difference during these uncertain economic times.

Red Light: Things YOU CANNOT Do

Now let’s talk about the things you must NOT do while considering FFCRA leave decisions for your employees:

  • You cannot ask an employee to look for different childcare if their usual provider is unavailable. An employee is entitled to leave if the child’s usual care provider is unavailable due to COVID-19 — they are under no obligation to look for alternatives, and any attempt on your part to require that would be an illegal interference with their right to leave.
  • You cannot request FFCRA documentation from an employee until after the first workday of FFCRA leave.
  • If an employee with children over the age of 15 provides a statement explaining that there are special circumstances that cause the older child to need their care, you are not allowed to dig any deeper into the situation.
  • Independent sleuthing to verify what an employee tells you is not a good idea. Never do anything that might infringe upon your employees’ right to privacy.

Yellow Light: Weighing the Pros and Cons of FFCRA Leave Decisions

When making decisions about approving or denying employee FFCRA requests, always be sure to weight the pros and cons of your decisions.

In some instances, you may be tempted to terminate an employee if they are unable to work and do not qualify for FFCRA leave. Assuming that no other leave laws apply, termination may be an option. However, you may want to instead consider offering the employee an unpaid personal leave of absence or revisiting whether a flexible or part-time work schedule would be better than losing the employee entirely. Recruiting, hiring, and training are all expensive undertakings, so if there’s a way to keep an employee around — even if they need some time off — that is likely better for your bottom line.

Making the determination that a leave request is fraudulent is another situation in which you’ll want to spend considerable time thinking about your next steps. If you feel like you have enough evidence to believe a leave request is fraudulent, you have the option to deny it. However, there is significant risk in denying a request for FFCRA leave if an employee has provided the appropriate documentation. Further, you don’t want to discipline an employee who was acting in good faith and simply misunderstood the leave rules.

Key Takeaways

There are still many gray areas related to the FFCRA. The Department of Labor will be releasing more guidance in the coming days and weeks. Be sure to stop by our blog regularly as we will make future posts that highlight the most important things that employers need to know about the FFCRA.

However, there are things that you CAN do and things that you CANNOT do related to the FFCRA as we’ve discussed in this post.

  • You CAN ask certain questions to ensure that your employees qualify for FFCRA leave.
  • You CANNOT ask an employee to look for different childcare if their usual provider is unavailable. And never do anything that violates an employee’s privacy.
  • As is the case in many aspects of managing your business, take time to weigh the pros and cons of FFCRA decisions. While you may be tempted to try to fight an employee leave request, consider the long-term costs and benefits of doing so.

What HR Leaders Must Know About FFCRA Leave Documentation

The Families First Coronavirus Response Act (FFCRA) launched last month, temporarily expanding paid sick and FMLA leave for employees of businesses with headcounts of fewer than 500 as part of the national COVID-19 response. The follow-up CARES Act provided payroll tax credits for employers to offset the cost and impact of the leave expansion.

The quick but piecemeal rollout of legislation has created some confusion as to how employees should declare their eligibility/need for leave and what documentation trail needs to exist to ensure employers are eligible for tax credits.

In this post we’ll cover:

  • What conditions or situations justify paid leave under the FFCRA
  • What documentation employees should submit as part of an application for leave
  • What documentation employers need to maintain to qualify for tax credits

Clarifying Who is FFCRA Leave Expansion Eligible

The FFCRA establishes three specific situations in which an employee working for a business with 499 or fewer employees qualifies for two weeks of paid sick leave at their regular rate, up to $5,110:

  • If the employee is subject to a federal, state, or local quarantine or isolation order
  • If the employee has been advised by a healthcare provider to self-quarantine
  • If the employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis

The act also establishes three other scenarios in which an employee working for a business with 499 or fewer employees qualifies for two weeks of paid sick leave at two-thirds (2/3) their regular rate, up to $2,000:

  • If an employee is caring for an individual subject to a quarantine or isolation order
  • If an employee is experiencing any substantially similar condition identified by the HHS
  • If an employee is caring for a child whose school or daycare is closed or unavailable due to COVID-19

Finally, the act also provides extended family leave for situations in which schools or childcare facilities remain closed beyond the two weeks of leave above. During that 10-week period, employees earn two-thirds (2/3) their regular rate, up to $10,000 (in addition to the $2,000 from their two initial weeks of leave).

Documentation Requirements for Employees Requesting Leave

The DOL did not codify any single approach to transitioning employees toward COVID-19 leave, instead saying that employees should file their request as soon as possible and follow reasonable documentation procedures as soon as practical. Here are the specific pieces of information/documentation the DOL stipulates employees must provide:

In their signed request for leave, employees must provide:

  • Their full legal name (as it appears on IRS records)
  • Their qualifying reason for leave (from the above list)
  • A clear statement that their illness or responsibilities prevent them from working from home during this time
  • Their anticipated date for return

If the employee is requesting leave due to a quarantine order, they must also provide:

  • The name of the government entity who issued the order

If an employee is requesting leave because a healthcare provider has instructed them to, they must also provide:

  • The name of the healthcare provider

If an employee is requesting leave to care for a child without school or daycare, they must provide:

  • The child’s full legal name as it appears on school rosters
  • The name of the school, childcare facility, or provider who is closed or unable to provide care due to COVID-19
  • A clear statement that they are the only option to provide care for this child at this time

As long as you’re requiring, collecting, and maintaining the above documentation, you and your employees are compliant in the eyes of the DOL.

What About a Doctor’s Note?

Generally speaking, a doctor’s note is the gold standard for medical leave and should be provided in COVID-19-related ADA accommodation requests. However, the DOL is not requiring one as part of their leave documentation procedure, in part because the strain of the pandemic is putting on the medical community.

That means if an employee believes they have COVID-19 or needs to care for someone who does, waiting to get a doctor’s note could actually put more of your employees at risk. That’s why the best guidance for now is to keep your application protocol relatively straightforward and stick to the DOL’s documentation requirements.

Documentation Requirements for Tax Credits

While the DOL’s documentation requirements are crucial to executing the FFCRA correctly, the IRS’ documentation requirements are equally important to getting the payroll tax credits available to help your business weather this storm.

In order to maintain eligibility for your tax credits, you must maintain:

  • IRS Form 7200
  • IRS Form 941
  • Any other documentation related to filing for credits with the IRS
  • Documentation of how you calculated FMLA/sick leave pay for employees
  • Documentation of how you determined the amount of qualified health plan expenses that you allocated to wages

In terms of documentation from your employees, the IRS’ requirements are extremely similar to the DOL’s, but there are a few key differences, specifically involving childcare scenarios.

The IRS requires documentation of the following information for employees requesting leave under the FFCRA to care for a child or children whose school(s) or place(s) of childcare are closed due to COVID-19:

  • The full name of each child as they appear on school rosters
  • The name of the school, childcare facility, or provider no longer able to provide childcare due to COVID-19
  • A clear statement that they are the only option to provide care for this child at this time
  • In the case of a child over 14 who would only be alone during daylight hours, employees should provide a statement explaining the special circumstances that require childcare


The goal of the FFCRA is to protect individuals and families across America during the COVID-19 pandemic. The CARES Act backs up the FFCRA by providing businesses with the tax credits they need to make the considerable leave expansion feasible. Getting those credits requires documentation of the right information, however.


  • There is no official leave documentation process for the DOL, but they do require a few specific pieces of information
  • The IRS has slightly stricter requirements for documentation of childcare-related leave
  • IRS forms 7200 and 941 are essential to receiving your tax credits
  • Be ready to explain how you calculated wages for employees on leave and determined your health plan expenses

Your Employees’ Leave Rights Under the FFCRA and How to Discuss Them With Your Team

The COVID-19 outbreak is changing nearly everything about how we work and do business. And if changing work conditions weren’t enough for employees to deal with, they also have to navigate a host of new federal policies including temporarily expanded sick leave and FMLA family leave. But, they don’t have to do it alone. Employers can help their team members work more effectively while achieving a healthy work-life balance by setting clear leave policies.

The Families First Coronavirus Response Act established Emergency Paid Sick Leave and drastically, albeit temporarily, expanded the scope of the Family Medical Leave Act. But it also left it up to employers to set the terms of how employees can use that leave. That means that employers must educate themselves on how their team members can take advantage of the leave to protect themselves and their families while staying productive, and then provide clear guidelines for their teams.

This can be particularly useful for employees who don’t want to take time off of work but have to take care of children who are now home from school or childcare. These employees are entitled to paid leave if they decide not to work. But they may not know how to take paid leave for time spent caring for their children while working part-time. That’s where employers can help employees navigate the situation so that they can work as much as possible while simultaneously taking care of their other obligations.

In this article, we’ll provide an overview of how employers can set flexible leave policies and help their team members navigate the new leave policies including:

  • Employees’ leave coverage under the Families First Coronavirus Response Act
  • How to expand the leave policies to help your team members work more effectively during the outbreak and as businesses begin returning to work

Employees’ Rights Under the Act

The Families First Coronavirus Response Act implemented several employee leave expansions that went into effect at the beginning of April. We wrote a full overview that you can read here, but here is a quick overview of what your employees are entitled to from the FFCRA if you have fewer than 500 employees:

  • 2 weeks full paid sick leave if they are unable to work due to COVID-19 illness, quarantined due to exposure, or are experiencing symptoms and waiting for a diagnosis
  • Paid sick leave is available to employees who are quarantined but not sick only if they cannot work remotely
  • 2 weeks of paid family leave at 2/3 pay if they need to care for an individual subjected to quarantine or need to take care of minors whose schools or childcare facilities are closed due to the virus
  • 10 weeks of extended family leave at 2/3 pay if employees need to take care of minors and have been with the company for at least 30 days

Notably, if your company has 49 or fewer employees, you can apply for a small business exemption. But unless you receive a small business exemption, you cannot prevent qualified employees from taking leave. Nor, given the current health crisis, should you aim to prevent employees from taking the leave they need. Your leave costs will likely be covered by tax credits under the new CARES Act. It’s often in your best interest to help your employees maximize their ability to leverage the leave policies, especially to discourage the spread of the virus amongst your workforce.

Expanding Leave Policies for More Effective Work

Under the FFCRA, employees may not be eligible for leave if they are healthy, do not have to care for minors, and can work remotely. While on the other end of the scale, employees who have to take care of minors may be eligible for a full 12 weeks of leave, paid at 2/3 their normal rate. However, many employees who do qualify for leave to take care of minors, but can work remotely, will not want to take three months away from their work. And many employees may be concerned about keeping some of that time in reserve, since no one knows how long the outbreak will last. That’s where employers can help their employees make the most of their paid leave while simultaneously minimizing the disruption to their business.

You have the right to force employees to either work full time or go on leave. But it is often in both of your best interests to work out an arrangement where employees with family obligations work as much as they can while taking leave when they cannot. And the FFCRA gives employers a lot of leeway in allowing employees to take sporadic or intermittent paid leave.

Employers can allow employees to take paid leave in increments anywhere from week-to-week, day-to-day, or even hour-to-hour. That means you could allow your team members to take paid leave to homeschool their children every other day while working full time on the other days. Or they can take a few hours of paid leave every day to take care of their family obligations and work for the rest of the work day. And this does not just apply to remote employees: you can allow employees who have to come into the workplace to work a partial schedule while taking paid leave on their days off.

It’s important to remember that employers are not obligated to provide this kind of flexibility. But it can often be in your best interest to work with employees to find the best arrangement for both parties. Not only will it allow you to retain key employees, on a partial basis, who would otherwise go on full-time leave, thus reducing the disruption to your business from COVID-19, but it can also have a lasting impact on employee relations. Employees will remember it if you work to help them juggle their work and non-work obligations, increasing loyalty and productivity in the long-term. On the other hand, they will also remember if you took an all-or-nothing approach that adhered to the bare minimum requirements of the FFCRA. It’s crucial to consider the optics of your approach to leave during COVID and as employees begin transitioning back to work.

To recap, you are allowed but not required under the FFCRA to let your team members take emergency paid sick leave or family medical leave:

  • On a day-by-day basis while working a partial schedule either remotely or in-person
  • On an hourly basis to allow for reduced hours per day, either around a shorter shift or to allow for breaks to care for family
  • On a weekly or monthly basis
  • At your discretion, within the limitations of the FFCRA (you can prevent employees from working until they come back from leave but you cannot prevent them from taking continuous leave while they qualify for it)

You should decide which of these arrangements, if any, will work for your business and then set a clear leave policy. Then, inform your entire staff of that policy and work with each employee to help them set up the arrangement that works best for them, within the limits set in your policy. Clarity and flexibility will help your business run smoothly and help your employees balance their work with their other obligations.

Key Takeaways

With the COVID-19 outbreak continuing to disrupt every part of life and business as we know it, we can all benefit from working together to find solutions. The FFCRA requires that employers offer 2-12 weeks of paid leave for qualifying employees at either full or 2/3 pay and you should take responsibility for that obligation. If you create flexible leave policies that enable employees to work as much as they can while taking only as much leave as they need, you can minimize disruptions to your business. Setting clear and flexible leave policies and helping employees take advantage of those policies is truly a win-win strategy. Just remember that:

  • Healthy employees who do not need to care for minors or sick family members may not be eligible for any expanded leave and can be required to work full time if they can work remotely
  • Employers are allowed to decide whether and how their employees can take intermittent sick or family medical leave
  • If they chose to, employers can let their employees take their expanded leave on an hourly, daily, or weekly basis

For more on the Families First Coronavirus Relief Act and running a business during the COVID-19 outbreak, check out Launchways’ comprehensive resources on our COVID-19 Emergency Resource Center.

What HR Leaders Need to Know About In-Person I-9 Verification Deferrals

Filling out form I-9 is a standard onboarding procedure for any new hire. The new employee fills out Section 1 and provides supporting documentation of their identification and work-eligible status; then an HR professional makes copies of that documentation, completes Sections 2 and 3 (as applicable), and retains the form.

Generally speaking, it’s expected that the I-9 is completed in person, with the new hire and a HR professional exchanging physical documentation and verifying information face-to-face.

However, given the CDC’s social distancing guidance for COVID-19, that procedure obviously isn’t appropriate for this moment. In order to enable strong businesses to continue hiring and providing meaningful work for new employees, the Department of Homeland Security (DHS) has temporarily deferred in-person I-9 verification.

Moving forward, we’ll explore:

  • Hiring/operating procedures during the current COVID-19 I-9 deferral period
  • The term of the deferral
  • Compliance expectations at the end of the deferral
  • The value of this deferral period for businesses

Modified Procedures for COVID-19

The DHS has temporarily suspended the need for in-person I-9 verification. That means businesses can continue to hire and onboarding new employees remotely during this time without fear of non-compliance.

For now, documents pertaining to identity verification and employment eligibility can be submitted and reviewed remotely (i.e. by scanning and attaching documents to an email or submitting through an HR portal). Copies of those files should be retained in your internal HR records.

DHS’ verification deferral has also loosened up the time window for I-9 completion. Temporarily, employers have three working days to complete the paperwork and confirm documentation instead of just one day.

How Long Will This Deferral Last?

The I-9 verification deferral period will end either sixty (60) days from March 20, 2020 or three (3) days after the end of the COVID-19 national emergency has been announced, whichever comes first.

What Do We Need to Do to Comply When This is Over?

Once the deferral period ends (as described above), employers have three business days to complete standard in-person I-9 verifications for any employees they have hired and onboarded during the deferral.

Under “Additional Information” on Section 2 of form I-9, the employer must note that COVID-19 temporarily prevented them from a detailed physical review of the original documentation and provide the date they physically examined the documents. From there, the forms can be filed and retained as usual.

Why is This Deferral Good for Business?

In-person I-9 verification would prevent many businesses from filling the holes in their depth chart created by COVID-19, as employees must take leave for their own health, to care for a family member, or to supervise children. By enabling streamlined remote hiring, the DHS is providing support to businesses who are doing their best to continue the work and provide paychecks to their teams during this time.

Furthermore, remote hiring has the potential to connect great talent with jobs where they can be impactful faster than ever, fighting back record unemployment to help jumpstart the economy once again.


The Department of Homeland Security is deferring in-person I-9 verification during COVID-19-related social distancing. This is a great opportunity for businesses to fill out their teams and keep the work going without slipping into noncompliance, but it’s important to remember:

  • The deferral window will end on May 19 or 3 days after the national emergency is declared to be over
  • Employers still need to review digital versions of identification/eligibility documents within three days of hire
  • When the deferral period ends, employers will have 3 days to complete traditional in-person I-9 verification