What happens to an E-3 employee that must work from home?
With the current range of restrictions in the US due to the COVID-19 crisis, there are many questions that E-3 Australian Specialty Occupation workers may have related to their employment. One of the common concerns we are seeing from employers and employees is what happens when the employee may temporarily need to work from home during this crisis. This could be because of quarantine, office closures or limitations, restrictions on social distancing, or arrangements to voluntarily working from home.
The U.S. Department of Labor (DOL) does have guidelines as to what happens when an employee may need to work from home as it relates to the Labor Condition Application (LCA). Working from a home office has always been an option as to a potential work site for an E-3 employee. When a home office is contemplated in advance of the LCA filing, it may need to be listed as a specific worksite on the LCA.
When the home office location, which has suddenly become common due to the current pandemic, was not originally a listed worksite, you may have a practical solution to continue using the current LCA.
If the E-3 workers’ current home is within the “area of intended employment” as listed on the certified LCA, then a new LCA filing is not generally going to be required as long as there are no changes in the terms and conditions of the employment otherwise. In these situations, the employer must provide an electronic or hard-copy notice posting for 10 days to that worksite, including a home office. As well, update the Public Access File of the E-3 worker with new posting information.
Due to the current COVID-19 outbreak, the DOL has provided guidance to provide flexibility as to the notice requirement. The DOL has stated that their office “acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.”
The importance of this guidance is that while the DOL is allowing flexibility with the regulations for E-3 employees who may need to work from home during the current health crisis, E-3 employers must act timely to comply with the LCA regulations.
If in the current situation, the employee may be moving to other worksites or temporarily leaving the US, then it will be important to discuss this situation with us before any action is taken or as quickly as possible thereafter. The above guidance may not apply to these situations.
We are happy to discuss these worksite issues with any E-3 employees or employers to develop the best strategy to handle their specific situation and worksite changes. Furthermore, we are here to help with any additional questions that employers or employees have related to questions on E-3 specialty occupation worker employment during this crisis. A range of issues may come up that require careful review and potential action, so please contact us today to schedule a consultation.
About The Author
Melissa Vincenty is a US attorney, an Australian migration agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 20 years of experience in migration law, including practising at the world’s largest US immigration firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
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