Employers are facing issues related to their workforce to a degree never experienced before due to COVID-19, and it is critical for employers to protect themselves as they make decisions surrounding continuing business operations.

By Holland & Knight, LLP, Erika Royal, Tara Vance

There have been many relevant changes to employee-related immigration processes and procedures as a result of COVID-19. Holland & Knight’s fourth installment in its series of alerts focusing on immigration under COVID-19 is a discussion of considerations that employers with H-1B visa workers should take into account when making employment decisions during the pandemic.

At this time, employers are facing increasingly difficult decisions regarding how to manage their employees and keep their doors open during business slowdowns related to COVID-19. Inevitably, many employers have been forced to lay off or furlough some or all of their employees. This alert will address the tough decisions faced by those employers with H-1B visa holder employees.

What Is a Layoff?

In general, a layoff is a separation from employment due to a lack of available work. It is usually not associated with any performance-related reason, and the employee has no expectation of returning to work. This is the typical situation when an employee is terminated without cause.

What Is a Furlough?

A furlough is a mandatory and temporary leave of absence where the employer and employee have the expectation that the employee will return to work or be restored from a reduced work schedule. Furloughs are often required by employers who are trying to avoid terminating the employment relationship but who do not have enough cash to make payroll or whose business is very slow. In most cases, the slowdown is expected to be temporary.

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