During this uncertain time, many employers are facing the need to make decisions regarding their workforce in order to mitigate the impact of the COVID-19 coronavirus pandemic. Employers who require telework or choose to furlough, layoff, or otherwise alter the work status of their workforce must be particularly mindful of the implications of these decisions with respect to H-1B workers.

The Department of Labor (DOL) requires employers to abide by the terms of the Labor Condition Application (LCA) to which the employer agreed when filing the H-1B petition. This includes paying the wage rate set forth in the LCA, even if the employee is in nonproductive status due to an employer decision (e.g., because of a lack of work) or a government issued shelter-in-place order that renders the employee unable to work. Otherwise, an employer could be exposed to fines, back wage obligations, and in serious cases debarment from immigration programs for a period of time.

Notably, an employer would not be required to pay the wage rate if an H-1B worker is in nonproductive status due to a personal reason unrelated to work, such as having contracted COVID-19, unless otherwise required by the employer’s benefit plan, the Family and Medical Leave Act, or another statute. Employers should be mindful though, that in the event the employer requires a COVID-19 positive H-1B worker to self-quarantine, the employer could risk liability for any failure to pay the wage rate where the self-quarantine is based on company policy.

Where there is a bona fide termination of employment, an employer may cease wage payments to the H-1B worker. A bona fide termination requires that the employer notify both the H-1B worker and the U.S. Citizenship and Immigration Services of the termination of employment. The employer must also offer to pay for the H-1B worker’s cost of return transportation back home.

Rather than implementing a furlough or terminating employment, some employers may choose to convert full-time H-1B workers to part-time status. A change from full-time to part-time status would constitute a material change in the terms and conditions of employment, such that a new LCA and H-1B amendment petition must be filed before reducing hours.

For employers attempting to mitigate the impact of the COVID-19 coronavirus pandemic by requiring telework, this decision, too, has special implications for H-1B workers. A new LCA or H-1B amendment petition is not required if the change in worksite (i.e., from the office to the H-1B worker’s home residence) occurs within the same area of intended employment. However, the employer should post notice at the new worksite (i.e., at the H-1B worker’s home residence) for a period of 10 business days or, alternatively, may provide direct notice (e.g., email notice) to all workers in the same occupation in the same area of intended employment. If the new worksite is located outside the original area of intended employment, then a new LCA and H-1B amendment petition must be filed before the H-1B worker commences employment in the new location.

Koley Jessen continues to monitor the situation and stay current on new legislation and guidance impacting employers in light of the COVID-19 coronavirus outbreak. If your organization has additional questions or concerns as the situation develops, please contact a member of the Koley Jessen Employment, Labor and Benefits Practice Group.

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