Fall-ing into More Covid Guidance and Compliance Talk

We’re welcoming Fall by picking outdoorsy colors for this one. Read on for updates to New York’s new mask guidance (or maybe a reason to “scarf up” in the office) and dealing with employee on-boarding in a remote workforce.

Do you know what it feels like…to be confused by more COVID guidelines?

New York has updated its HERO Act guidance . . . again! Of particular note is that employers are no longer required to have employees mask up if all workers onsite (including contractors) are fully vaccinated. But, of course, it’s still recommended.

The updated model plan now reads:

Face Coverings:

1. [APPLICABLE FOR MOST WORKPLACES] Employees will wear appropriate face coverings in accordance with guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.

2. [APPLICABLE FOR WORKPLACES where all individuals on premises, including but not limited to employees, are fully vaccinated – defined as having completed a federally authorized or approved vaccination series for an airborne infectious disease designated as a highly contagious communicable disease that presents a serious risk of harm to the public health (as is currently the case for COVID-19, pursuant to the Commissioner of Health’s designation)]. Appropriate face coverings are recommended, but not required, consistent with State Department of Health and the Centers for Disease Control and Prevention applicable guidance, as of September 16, 2021.

We should all expect more guidance to be released, especially in light of the Governor’s designation of COVID-19 as an infectious disease triggering the Act’s implementation requirement. Another reason to put together those mandatory HERO Act plans and conduct any necessary trainings on the Act/Plan’s provisions. For our analysis of the HERO Act, check out our blog post on the topic.

This wouldn’t be a WK update without some mention of compliance now, would it?

When was the last time you thought about I-9 compliance? As you all know, a key part of any employee on-boarding is requesting documentation required by an I-9 Form, which establishes an employee’s eligibility to work in the US. Normally this documentation is reviewed in-person by a representative of the company. But how’s that work in a remote office?

In response to this exact problem, the United States Citizenship and Immigration Services (USCIS) issued temporary rules to permit companies to comply with the I-9 requirements virtually. Under those rules, which have since expired, employers still needed to inspect the documents (remotely) and retain copies for personnel files, but could indicate “COVID-19” as the reason for any delay in physical inspection of the records. So, what to do now? Assuming the rules are not extended, employers should utilize an “authorized representative” to conduct the physical review of the I-9 Forms. We recommend that you still conduct a virtual review of the completed forms to ensure they are properly completed.

Depending on where the employee is physically located, the authorized representative can be anyone (ranging from a notary to a family member), which is why the virtual review is so important – the employer remains liable for improperly completed forms. Some states (California, of course . . . ) have certain requirements to be considered an “authorized representative”.

So, if you’ve been on a remote hiring frenzy, probably a good idea to check your on-boarding process and conduct an I-9 audit.

Like what you’re reading? Confused by what you’re reading? Just want to chat? We’re here for all of it. Let’s have a conversation.

Damien + Brian


Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.

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