USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
may not directly ask about a candidate’s national origin, citizenship or immigration status during the hiring process. Instead, employers must use neutral questions to determine whether the applicant requires immigration sponsorship to begin working or to con - tinue employment in the future. Acceptable questions include: • “Are you legally authorised to work in the USA?”; and • “Do you now, or will you in the future, require immi - gration sponsorship for work authorisation?” If a candidate answers affirmatively to the second question, the employer may ask more direct ques - tions about the applicant’s immigration status and work authorisation in order to make an informed hir- ing decision. 4.2 Registration Requirements for Foreign Workers Foreign nationals can obtain non-immigrant (tempo - rary) visas and immigrant (permanent) visas to work in the USA. Most foreign nationals initially enter the USA on a non-immigrant visa. Some common employer- sponsored non-immigrant visas include the H-1B, L-1 and TN non-immigrant visas. Employers are free to allow employees to work in mobile settings as long as the arrangements com - ply with generally applicable federal, state and local laws, especially tax requirements. Companies must be mindful of leave and return-to-office issues under the FMLA and ADA as well as state and local leave laws, safety issues under the Occupational Safety and Health Act (the “OSH Act”), workers’ compensa - tion for work-related injuries that occur at home, and poster and notice requirements. Employee tax compliance is a major issue. Employers are generally required to withhold income tax in the state where an employee performs services, whether on-site or remotely. This means employers must stay informed about tax withholding rules in every state 5. New Work 5.1 Mobile Work
where they have employees. For instance, a South Carolina-based employer with an employee working remotely in Georgia may still owe Georgia income tax withholding. Some states have reciprocal agreements, allowing them to tax only their own residents, even if those residents work in another participating state. Others apply the “convenience of the employer” rule, taxing remote workers based outside the state if they are working remotely for personal reasons rather than business necessity. Employers can still be liable for withholding taxes even if they are unaware an employ - ee has relocated. States expect employers to know where their employees are working, and failure to withhold can lead to retroactive penalties. To monitor remote work, employers may rely on digital indicators like IP login data. Return-to-office mandates create legal issues and risks, though some courts are finding in favour of employers, ruling that indefinite remote work is not a reasonable accommodation under the ADA. A fed - eral court in Virginia denied a request for remote work as an ADA accommodation, as on-site presence was deemed an essential job function. The ruling affirms that employers can require in-person work if it was essential pre-pandemic, even if remote work was temporarily allowed during COVID-19. It also rein - forces that courts generally defer to an employer’s judgment on what job functions are essential, includ - ing physical presence. A federal court in Kansas ruled that an employee’s request for indefinite remote work under the ADA was not reasonable since in-office presence was essential and the employee could not return soon. The court clarified that allowing tempo - rary remote work does not make indefinite remote work a required accommodation. It also found that the absence of an in-office requirement in job descrip - tions or policies does not determine whether physical presence is essential – other factors, like job duties and past practices, may be considered. On the other hand, A federal court of appeals reversed a victory for an employer, holding that an employee’s refusal of remote work as the only offered accom - modation did not end the interactive process. The employer never asked why the accommodation was unreasonable, and the Rehabilitation Act (which applies the similar standards to the ADA) does not
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