Current Developments in Estate Planning and Business Law: August 2023

Aug 16, 2023 9:32:12 AM


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From a Michigan jury’s decision that a document found in Aretha Franklin’s couch is her valid will to recent decisions regarding what constitutes reasonable accommodations for religious and disabled employees, we have recently seen significant developments in estate planning, elder law, and business law. To ensure that you stay abreast of these legal changes, we have highlighted some noteworthy developments and analyzed how they may impact your estate planning and business law practice.

Handwritten Document Found in Couch Recognized as Aretha Franklin’s Valid Will

After famed musician Aretha Franklin died in 2018, family members found two handwritten documents in her Michigan home purporting to be her will: a 2014 document in a notebook found underneath a cushion on her couch and a 2010 document located in a locked cabinet. Although Franklin had signed and dated both documents, neither had been signed by two witnesses. The 2010 document was signed by a notary public. Michigan statutes require that a will be in writing, signed by the testator, and either signed by two witnesses, or, if not witnessed, be holographic (i.e., handwritten); however, the statute also provides wiggle room to demonstrate the testator’s intent. Mich. Comp. Laws § 700.2502(2)

Two of Franklin’s sons, Kecalf and Edward, argued that the 2014 document should be considered the valid will; another son, Ted, argued that the 2010 document should be considered Franklin’s valid will. The 2014 document (found in the couch) provided that brothers Kecalf, Edward, and Ted would inherit equal amounts of music royalties from her estate, but a fourth son, Clarence, would not inherit royalties (the other sons having reportedly agreed to support Clarence). In addition, the 2014 document provided that Kecalf and Franklin’s grandchildren would inherit her $1.1 million Michigan home and her cars, and Edward and Ted would receive other properties. However, Ted asserted that the 2010 document, which was found in a locked cabinet, should be deemed to be Franklin’s will because the location in which it was found indicated it was more official. Of note, the 2010 document stated that Kecalf and Edward must take business classes and obtain a certificate or degree to inherit from Franklin’s estate.

The matter was put before a jury, and the jury found that the 2014 document was a valid will under Mich. Comp. Laws § 700.2502(2), which provides that a will is “valid as a holographic will, whether or not witnessed, if it is dated, and if the testator’s signature and the document’s material portions are in the testator’s handwriting.” 

Takeaways: Aretha Franklin’s holographic will would not be valid in some states that do not recognize holographic wills. Additionally, in states such as California or Florida, where will contests are generally not eligible for jury trial, the matter likely would not have been put before a jury. If Franklin had resided in a state that does not recognize holographic wills, her estate likely would have been distributed according to the state intestacy statute—because she was unmarried at her death, each son, including Clarence, would have received an equal share of her estate. Many states recognize the validity of holographic wills under certain circumstances. Several states that do not accept holographic wills executed by a resident of their state will nonetheless recognize them as valid if the will was executed by a nonresident and is valid under the law of the state where it was executed.

California Enacts Uniform Fiduciary Income and Principal Act 

2023 Cal. Legis. Serv. Ch. 28 (S.B. 522) (West)

On June 29, 2023, California Governor Gavin Newsom signed Senate Bill 522, enacting the Uniform Fiduciary Income and Principal Act (UFIPA) and repealing the Uniform Principal and Income Act. The new law (to be codified at Cal. Prob. Code § 16320) provides additional flexibility in trust accounting that reflects the standards set forth in the Uniform Prudent Investor Act, which encourages fiduciaries to use prudent investing or total return investing. Trustees who invest for the greatest total return typically seek to adjust between interest and principal to ensure that remainder beneficiaries are not disadvantaged when income is high and income beneficiaries are not disadvantaged when income is low, with the goal of achieving a fair result for all beneficiaries. The prior law allowed trustees to adjust income and principal only if certain conditions were met, but the new rule removes the conditions and allows the trustee to adjust between income and principal “if the fiduciary determines the exercise of the power to adjust will assist the fiduciary in administering the trust or estate impartially.” (Cal. Prob. Code § 16327(a)).

The new law also allows the trustee the power to convert the trust to a unitrust (Cal. Prob. Code § 16332(a)). Converting the trust to a unitrust allows the trustee to determine the amount of distributions to an income beneficiary based on a percentage of the net value of the trust assets each year (or other period specified in the trust document) instead of the income actually produced by the trust’s assets or the growth of those assets. The new law also provides that a unitrust rate may not be less than 3 percent or greater than 5 percent, absent court approval. (Cal. Prob. Code § 16335(a)). 

Senate Bill 522 also specifies that, unless the trust document provides otherwise, it is applicable “when [California] is the principal place of administration of a trust or estate or the situs of property.” (§ 16323). This provision is aimed at avoiding jurisdictional disputes that could arise if the trustee were required to apply the law of the state where the trust was created.

Takeaways: In adopting UFIPA, California provides greater flexibility with regard to accounting rules, which gives trustees discretion and the ability to better adapt to future events.

Florida’s Two-Year Statute of Repose Applies to Liability Insurance Claims

Tsuji v. Fleet, No. SC2021-1255, 2023 WL 4246120 (Fla. June 29, 2023)

On June 11, 2014, Thomas E. Morton, Jr. injured Samantha Tsuji and Crystal Williams in a car accident; Thomas was driving a car owned by his employer, Lewis Bear Company (LBC), in the course of his employment. Thomas passed away from causes unrelated to the accident on June 28, 2014. On February 6, 2018, Samantha and Crystal filed suit against Thomas for negligent operation of the car and LBC for vicarious liability based on respondeat superior. When they learned that Thomas had died in 2014, they substituted the personal representative of Thomas’s estate, Bart Fleet, in the action and reduced the amount of damages they sought to the limit of Thomas’s casualty insurance coverage.

LBC filed a motion for summary judgment on the basis that Samantha and Crystal’s action was barred by the relevant statute of repose, Fla. Stat. § 733.710(1), because they had failed to file suit against the estate within two years of Thomas’s death. (Note that a statute of limitations begins to run after a harm occurs or is discovered; a statute of repose begins to run upon the happening of an event.) LBC argued that because section 733.710(1) barred Samantha and Crystal’s claims against Thomas’s estate, it also barred their claim against LBC, which was based solely on a theory of vicarious liability for Thomas’s negligence, not on any negligence committed by LBC. LBC relied on Buettner v. Cellular One, Inc., 700 So. 2d 48, 48 (Fla. 1st Dist. Ct. App. 1997), in which the court ruled that, in an action against an employer seeking to hold it vicariously liable for negligence of a deceased employee, the plaintiff may not rely on the four-year limitations period applicable to negligence claims if the claim against the deceased employee is barred by the two-year limitations period set forth in Fla. Stat. §§ 733.702(5) and 733.710.

Samantha and Crystal argued that a plaintiff is not barred from bringing claims seeking only to recover from a deceased person’s casualty insurance under § 733.702(4)(b) (“Nothing in this section affects or prevents . . . [t]o the limits of casualty insurance protection only, any proceeding to establish liability that is protected by the casualty insurance.”). They relied on Pezzi v. Brown, 697 So. 2d 883, 886 (Fla. 4th Dist. Ct. App. 1997), in which the court held that section 733.710(1) did not bar a negligence claim from a plaintiff who sought to recover only from a decedent’s insurer rather than from the decedent or his estate. The Florida Supreme Court had indicated approval of the Pezzi ruling in May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). 

The probate court and the First District Court of Appeals ruled in favor of LBC, holding that Samantha and Crystal’s claims were time barred by the two-year statute of repose set forth in Fla. Stat. § 733.710(1).

On appeal, the Florida Supreme Court agreed, holding that Fla. Stat. § 733.710(1) barred Samantha and Crystal’s claims against Bart Fleet, as the personal representative of Thomas’s estate. The court noted that Florida’s probate code includes two limits applicable to creditors’ claims against estates: Fla. Stat. § 733.702 and Fla. Stat. § 733.710. In determining how the two statutes work together, the court first considered Fla. Stat. § 733.702, which it described as a statute of limitations that “fixes the basic time frame for filing of claims in decedent’s estates being probated in Florida.” Tsuji v. Fleet, No. SC2021-1255, 2023 WL 4246120, at *3 (Fla. June 29, 2023) (quoting May v. Illinois National Insurance Co., 771 So. 2d 1143, 1155 (Fla. 2000) (quoting Comerica Bank & Tr., F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163, 165 (Fla. 4th DCA 1996))). Fla. Stat. § 733.702(1) states that claims against the decedent’s estate are barred “unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.” The limitations period in § 733.702(1) bars untimely claims even if no objection to the claim is filed and may only be extended for fraud, estoppel, or insufficient notice of the claims period (Fla. Stat. § 733.702(3)). Fla. Stat. § 733.702(2) provides: 

No cause of action, including, but not limited to, an action founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom the claim may be made, whether or not an action is pending at the death of the person, unless a claim is filed within the time periods set forth in this part.

(emphasis added). The court found that § 733.702(2) expressly incorporates other provisions in Part VII (Creditor’s Claims) of Florida’s probate code, including the two-year statute of repose set forth in § 733.710(1). Although § 733.702(4) provides that “[n]othing in this section affects or prevents . . . [t]o the limits of casualty insurance protection only, any proceeding to establish liability that is protected by the casualty insurance,” § 733.702(5) clearly states that “[n]othing in this section shall extend the limitations period set forth in s. 733.710.”

Section 733.710(1) provides:

Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.

(emphasis added; the word “liable” becomes significant in the court’s analysis). The court noted that section 733.710 provides only two exceptions to the application of the two-year statute of repose: (1) creditors’ claims that were filed within two years after the person’s death that have not been paid or otherwise disposed of (§ 733.710(2)), and (2) the lien of a duly recorded mortgage or security interest, any person in possession of personal property, or right to foreclose and enforce a mortgage or lien. (§ 733.710(3)). The court held that § 733.710(1) provides “a self-executing, absolute immunity to claims filed for the first time . . . more than 2 years after the death of the person whose estate is undergoing probate.” May, 771 So. 2d at 1156 (quoting Comerica, 673 So. 2d at 167).

The court noted that Samantha and Crystal had filed their claim more than two years after Thomas’s death and determined that their claims would be barred under the two-year statute of repose if they sought to hold his personal representative, Bart Fleet, liable for claims against Thomas. Samantha and Crystal asserted that they did not seek to hold Fleet liable for claims against Thomas in the sense that Fleet was obligated to pay damages; rather, they sought damages only to the limits of the casualty insurance coverage, and only the insurer would have to pay for damages resulting from Thomas’s negligence. The court disagreed with their interpretation of the word liable, however. As part of the court’s extensive analysis, it noted: “Any recovery . . . is cabined to the limits of the casualty insurance protection only, meaning a defendant in a proceeding under this subsection, like Fleet, would not be responsible for the payment of damages, and therefore would not be ‘liable’ in the ‘pay-money’ sense of the word.” Tsuji v. Fleet, No. SC2021-1255, 2023 WL 4246120, at *6 (internal quotations omitted). The court held that its analysis “begins and ends with the statutory language.” Id. at *9. Because Samantha and Crystal sought to hold Fleet liable for claims against Thomas, their claim against Fleet was barred under the two-year statute of repose.

Similarly, the court ruled that Samantha and Crystal’s claims against Thomas’s employer, LBC, were barred by the statute of repose: “When a statute of repose bars claims against an agent for negligence, the principal is exonerated from vicarious liability arising solely from that agent's negligence.” Id. Under the exoneration rule, if the employee has been exonerated from liability by an adjudication on the merits, the employer is likewise exonerated from vicarious liability. The two-year statute of repose, which is a “jurisdictional statute of nonclaim that automatically bars untimely claims, . . . constitutes such an adjudication where the provision bars” Samantha and Crystal’s claims against Thomas’s estate. Id. at *9.

The Florida Supreme Court thus affirmed the Florida First District’s decision granting the motion for summary judgment and disapproved of the Florida Fourth District’s contrary ruling in Pezzi v. Brown, 697 So. 2d 883, 886 (Fla. 4th Dist. Ct. App. 1997), noting that its support of the Pezzi decision in May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000) was not essential to its holding in that case, and as a result, was “without force as precedent.” Id. at *8.

Takeaways: The Tsuji court’s ruling that casualty insurance claims are not exempt from the two-year statute of repose set forth in Fla. Stat. § 733.710 resolves the conflict that had existed between the First and Fourth Districts in Florida. This ruling is particularly important for Florida probate attorneys, who can now be assured that an estate will be absolutely immune to such claims if they are filed more than two years after a decedent’s death, regardless of whether a probate proceeding is ever commenced or public notice to creditors is filed. 

Devise to Former Spouse’s Heirs-at-Law Revoked as a Matter of Law

In re Tomczik, 992 N.W.2d 691 (Minn. July 5, 2023)

In 1995, Mathew Tomczik executed a will specifying that Sara, who was then his wife, was to be the primary beneficiary of his estate if she survived him. If Sara did not survive him, Mathew’s will contained an alternate residuary clause devising one-half of his estate to Sara’s heirs-at-law. Although Mathew and Sara divorced in 2019, Mathew did not revise his will. Neither of them remarried or had any children.

When Mathew died in 2021, his brother and personal representative left Sara’s parents out of the probate petition, which only identified Mathew’s siblings. Sara’s parents objected, asserting that they had been wrongfully omitted because they were Sara’s heirs-at-law. The probate court ruled that the devise to Sara’s heirs-at-law failed as a matter of law; however, the Minnesota Court of Appeals reversed that ruling.

The Minnesota Supreme Court reversed the court of appeals, siding with the probate court. The court noted that there was no dispute that the devises in Mathew’s will to Sara were revoked pursuant to Minn. Stat. § 524.2-804(2), under which a former spouse is treated as having died immediately before the dissolution or annulment of the marriage. The court determined that because devises to Sara were revoked, and neither Mathew nor Sara had children, the alternate residuary clause was applicable. The alternate residuary clause stated:  

  1. I give the residue of my estate, consisting of all property which I can dispose of by Will and not effectively disposed of by the preceding articles of this Will, except any property over which I may then have a testamentary power of appointment, as follows:  

. . . .   

3.4 If any interest is not effectively disposed of by the preceding provisions of this article, one half (1/2) [sic] to my heirs-at-law and one-half (1/2) to my wife’s heirs-at-law. The heirs-at-law of each of us shall be determined (as of the date of death of the survivor of my [wife] and me) under, and take the shares prescribed by, Minnesota statutes of intestate succession in force at the execution of this Will, applied as if each of us had then died intestate.

In re Tomczik, 992 N.W.2d 691, 693–94 (Minn. July 5, 2023) (emphasis added). 

The Minnesota Court of Appeals had previously concluded that when a will names an individual and specifies the individual’s relationship to the testator, a change in the relationship does not invalidate a gift because the relational term is merely descriptive and is not limiting (see In re Estate of Kerr, 520 N.W.2d 512, 514 (Minn. App. 1994)). However, the Minnesota Supreme Court distinguished the present case from that precedent, finding that the phrase “my wife’s heirs-at law” in Mathew’s will demonstrated “the testator’s paramount intention to describe the beneficiaries not as individuals but as members of a group identified by familial ties.” In re Tomczik, at 697 (quoting In re Estate of Hermon, 46 Cal. Rptr. 2d 577, 581 (Cal. Ct. App. 1995)). Thus, because Mathew had no wife at the time of his death, any gift identified by familial ties to his now-nonexistent-wife failed. 

Takeaways: State law varies regarding the impact of divorce on a client’s will if it is not revised before the client’s death. In some states, as in Minnesota, all provisions that benefit a former spouse are revoked upon a divorce by operation of law in the absence of the execution of a new will or codicil after the divorce expressing an intention to benefit the former spouse. Although the Tomczik decision extends this rule to gifts made to the former spouse’s family members who are not individually named in the will, other states may reach a different result. It is also important to be aware of your state’s law regarding the effect of divorce on the appointment of a former spouse as the executor of a will, trust provisions benefiting a former spouse, a former spouse’s appointment as an agent under financial or medical powers of attorney, and beneficiary designations in insurance policies and retirement accounts. 

The Tomczik decision may also impact situations in which a couple has divorced because one spouse requires Medicaid for long-term care. In such a circumstance, the couple pursues divorce to shield assets for the non-applicant spouse—referred to as the community spouse—and minimize the countable assets of the institutional spouse–the one applying for Medicaid. This strategy, while generally effective for Medicaid purposes, can prove emotionally painful for spouses who continue to share a strong bond of love, and a desire to benefit each other and each other’s families. Although a divorce may have been a choice of last resort, the now-ex-spouses will likely need to update their estate plans. For example, if the institutionalized spouse fails to amend their will after the divorce to state an intention to benefit the surviving former spouse, any devises to their now-ex-spouse—and the surviving former spouse’s family members who are not specifically named but identified only as members of a group describing their family ties to the deceased spouse—may fail.

US Supreme Court and Fifth Circuit Court of Appeals Address Reasonable Accommodations for People of Faith and Disabled Individuals

Groff v. Dejoy, 143 S. Ct. 2279 (June 29, 2023)

Gerald Groff, an evangelical Christian, worked for the United States Postal Service (USPS) as a mail carrier. When Gerald started his job in 2012, his job did not typically require him to work on Sunday. However, when the USPS agreed in 2013 to make Sunday deliveries for Amazon, Gerald was required to work on Sundays on a rotating basis. Because his religious belief was that Sunday should be devoted to worshiping God and rest, he transferred to a rural USPS that did not require Sunday deliveries. However, in 2017, the rural station also began making Sunday deliveries for Amazon. Gerald was unwilling to work on Sunday and his assignments were redistributed to other mail carriers. Because of his refusal to work on Sunday, Gerald received progressive discipline, and in 2019, he resigned from his job.

Gerald then filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2(a)(1), which makes it unlawful for covered employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual’s . . . religion.” Under 42 U.S.C. § 2000e(j), “the term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.” 

Gerald asserted that the USPS had failed to accommodate his religious practice despite its ability to do so without undue hardship on the conduct of its business. The federal district court granted summary judgment in favor of the USPS based on the US Supreme Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Hardison had been interpreted as holding that when religious accommodation required anything more than a de minimis cost, it caused undue hardship to employers. The Third Circuit Court of Appeals affirmed, finding that the USPS had met the de minimis cost standard because accommodating Gerald’s refusal to work on Sundays imposed on his coworkers, disrupted the workflow, and decreased his coworkers’ morale. Gerald filed a petition for a writ of certiorari.

In a unanimous opinion, the Supreme Court reversed. The court recognized that many lower courts had quoted the following sentence in the Hardison decision: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84. It determined that lower courts’ reliance on this sentence as the authoritative interpretation of the term “undue hardship” was based on a doubtful reading of the Hardison decision. The Hardison court stated several times that accommodation was not required when it entailed substantial costs or expenditures. Further, other courts and the Equal Employment Opportunity Commission both prescribed more than a de minimis cost test. Therefore, the court ruled that Hardison did not compel courts to read the “more than a de minimis” standard literally or in a way that undermined the references to substantial cost in Hardison

Rather, the court held that merely showing “more than a de minimis cost” is insufficient to establish “undue hardship” under Title VII. The court understood Hardison as meaning that undue hardship is shown when the burden of a religious accommodation is substantial in the overall context of the employer’s business based on a fact-specific inquiry. To justify its refusal to grant religious accommodation, the employer must show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Groff v. Dejoy, 143 S. Ct. at 2294. All of the relevant factors in the case at hand must be considered, “including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.” Id. Further, the court clarified that impacts of the accommodation on coworkers are relevant, but only those that affect the conduct of business, stating as follows:

[A hardship] attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself.

Id. at 2296. The employer must also reasonably accommodate an employee’s practice of religion, not merely assess the reasonableness of a particular accommodation such as requiring other employees to work overtime. It must also consider other options, such as voluntary shift-swapping.

Takeaways: The Groff court noted that “a bevy of diverse religious organizations has told this Court that the de minimis test has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market.” Id. at 2292. The court’s clarification of the undue hardship standard as requiring a higher standard, that is, a showing of a substantial burden, to justify denial of a religious accommodation, is likely to trigger more accommodation requests. Attorneys advising businesses with employees should familiarize themselves with the new standard and recommend changes to their policies necessary for compliance.

Montague v. United States Postal Service, No. 22-20113, 2023 WL 4235552 (5th Cir. June 28, 2023)

In another case involving a USPS employee, Dionne Montague requested accommodation from the USPS due to her peripheral neuropathy, which was a nerve condition that was worse in the morning than in the afternoon. She asked for permission to work from home in the mornings and in the office in the afternoons.

The USPS denied Dionne’s request, and she filed suit, alleging a violation of the Rehabilitation Act, 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, . . . be subjected to discrimination under . . . any program or activity conducted . . . by the United States Postal Service.”). The federal district court granted summary judgment in favor of the USPS based on its finding that driving and travel were essential to Dionne’s work.

On appeal, the Fifth Circuit Court of Appeals noted that the case turned on whether it was reasonable for Dionne to work from home in the mornings considering the particulars of her employment. If the proposed accommodation of working remotely in the mornings fundamentally altered the nature of the service or activity by removing an essential function, the proposed accommodation would not be reasonable. The Fifth Circuit Court of Appeals recognizes seven nonexhaustive factors that courts should consider in determining whether a function is essential in each case: 

  1. The employer’s judgment
  2. Written job descriptions
  3. The amount of time spent performing the function
  4. The consequences of not requiring the incumbent to perform the function
  5. The terms of a collective bargaining agreement
  6. The work experience of past incumbents
  7. The current work experience of incumbents in similar jobs

Montague v. United States Postal Service, No. 22-20113, 2023 WL 4235552, at *2 (5th Cir. June 28, 2023). In considering whether travel and being at the office in the mornings were essential to Dionne’s job, the court determined that there were genuine issues of material fact that must be decided by a fact-finder. The USPS’s own documentation revealed that Dionne had traveled only minimally for her job: two or three times a year during 2013, 2014, and 2015. In addition, although Dionne’s supervisor indicated that her job sometimes involved travel within Houston, there was no evidence that the travel had to occur in the mornings. Dionne’s job description did not mention travel as an essential part of her job. Further, Dionne presented evidence that two employees who held the same position as her worked remotely either part of the week or all the time. The court found that based on this evidence, a jury could find that it was reasonable for Dionne to work from home in the mornings.

The USPS asserted that it had offered sufficient accommodation, and that Dionne had a right only to a reasonable accommodation, not her preferred accommodation. It suggested that Dionne’s husband or a taxi could drive her to work. Dionne disputed the reasonableness of these accommodations, explaining that her husband’s commute required him to leave hours before her job started and that he was often away. In addition, Dionne asserted that the expense of hiring a taxi every day was prohibitive and that the USPS had not offered to reimburse that expense. The court determined that Dionne had presented evidence sufficient for a jury to conclude that the accommodations suggested by the USPS were not reasonable. 

Dionne also stated that individuals on the USPS accommodation committee had mocked her and made derogatory comments. The court ruled that she had raised a question of fact regarding whether the USPS had offered its suggested accommodations in good faith.

The court further noted that the consensus is that worksite attendance is an essential function of most jobs, but that Dionne’s requested accommodation was consistent with that principle in that she would come into her office in the afternoons. 

The court reversed the district court’s grant of summary judgment and remanded the case for proceedings consistent with its opinion.

Takeaways: Despite the court’s statement that attendance at a worksite is an essential function of most jobs, commentators have noted that this proposition has been called into question as a result of widespread remote work during the COVID-19 pandemic. It may be more difficult for employers to demonstrate that telecommuting removes an essential function of their employees’ jobs if those employees successfully worked from home for several months during the pervasive shutdowns in 2020 and 2021.

Department of Homeland Security to Release New I-9 Form and Permanent Remote Verification for E-Verify Employees

Optional Alternative 1 to the Physical Document Examination Associated With Employment Eligibility Verification (Form I–9), 8 C.F.R. § 274a (July 25, 2023)

On March 20, 2020, the US Immigration and Customs Enforcement (ICE) announced that the Department of Homeland Security (DHS) would defer physical examination requirements associated with Form I-9. This announcement was extended several times during the pandemic, and on March 31, 2021, ICE issued an updated announcement requiring only employees who physically reported to a workplace to undergo an in-person examination of their Form I-9 identity and employment eligibility documentation. Employees who were hired on or after April 1, 2021, and worked exclusively remotely were temporarily exempted from the in-person examination until they resumed in-person work.

On July 21, 2023, Department of Homeland Security (DHS) issued a final rule amending its previous regulations to permanently permit qualified employers (i.e., those enrolled in E-Verify that are in good standing) the option to conduct remote examinations of Form 1-9 documentation beyond the July 21, 2023, expiration of its COVID-19 flexibility guidance. Qualified employers that choose to use the alternative procedure must offer it consistently for all employees at its site without discrimination. The employer may continue to offer the alternative procedure only to remote employees but may not adopt that practice for a discriminatory purpose. Within three business days of an employee’s first day of employment, employers that use the alternative procedure must:

  • Examine copies of Form I-9 documents or another acceptable document to ensure genuineness
  • Conduct a live video interaction with the individual who presented the documents to ensure the documents are genuine and related to the individual
  • Indicate that the alternative procedure was used on the Form I-9
  • Retain a clear and legible copy of the document
  • Provide a clear and legible copy of the documentation to a relevant government official in the event of a Form I-9 audit or investigation

By August 30, 2023, employers that do not participate in E-Verify or were not enrolled in it at the time they initially performed a remote examination of an employee’s documentation must perform all required physical examinations for individuals hired on or after March 20, 2020.

Form I-9 has also been modified to facilitate its use by employers. The new Form I-9, which may be used starting August 1, 2023, is one page and is accessible on tablets and mobile devices. In addition, the new form contains a checkbox that qualified employers can mark to indicate they remotely examined an employee’s identity and employment authorization documents under the alternative procedure.

Takeaways: Employers may continue to use the prior version of Form I-9 until October 31, 2023. Under the Immigration Reform and Control Act of 1986, all employers must complete a Form I-9 for all employees hired after November 6, 1986. In addition, they must retain completed I-9s and other required documentation for all active employees and for a specified period after employment has ended. 

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