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Expats and COVID-19: Global Employees at Risk and in Limbo

By Wendi Lazar

The coronavirus has hit multinational employees hard in every part of the world. U.S. expatriates living abroad and E.U. expats working in the U.S. have been subject to travel bans, embassy closures, shelter-in-place orders, widespread work shutdowns, mass terminations, and furloughs on both sides of the pond and around the globe. New laws and regulations in their home and host countries offer substantive benefits for employees who are forced to work remotely, caring for sick children and family members, or caring for themselves if struck with the COVID-19 virus. Figuring out if and how these laws apply can be daunting to expatriate workers at all levels. Having legal employment counsel involved in helping to make decisions as well as coordinating the expats' legal and financial needs with other professionals is key.

Immigration Challenges

Immigration regulations in the U.S. and most of Europe are at a standstill, with no incentive for governments to change the status quo because of the high unemployment rates affecting their own citizens. U.S. embassies in many countries have closed and have stopped processing visas outright.

Domestically, the USCIS has not responded with any temporary relief for foreign workers or students in the U.S. whose visas expire when they are furloughed, benched, or terminated from employment or when their school programs are canceled. They are literally stuck in the U.S. with no extensions; some are not and lack the ability to change their status to adjust to the changing circumstances. Certain visa categories will put certain employees out of status immediately - merely by the employee's change in location due to remote work.

These and other situations cause an incredible amount of uncertainty, stress, and anxiety, and H.R. representatives and employers are simply not equipped to deal with many of these issues given the state of affairs and their own struggles to adapt to this pandemic.

Workers Far Away From Home

In addition, insolvency resulting from the economic impact of COVID-19 has prompted corporate bankruptcies and massive restructurings, followed by reductions-in-force that cause employees in the U.S. and the E.U. to fear for their jobs and futures. For expats who have uprooted their lives and families to work abroad, terminations and layoffs have made them literally "strangers in a strange land." They cannot leave their host countries due to travel and immigration restrictions, nor can they remain in their host country with any certainty because of workplace upheavals

Many expats are trying to plan for the worst and get ahead of a potential job loss, relocation hurdles, insufficient health insurance, and work visa issues. Although some nations will still accept citizens returning home despite the travel bans, other countries are not allowing any non-essential travelers to enter even if they were willing to face the risk of infection while in transit.

Relief from New and Existing Federal Laws

Under existing federal laws, U.S. citizens living abroad and returning to the U.S. or foreign expats working in the U.S. may qualify to purchase without penalty a healthcare plan through the Patient Protection and Affordable Care Act before the next open enrollment. This option provides at least some comfort for those concerned about a lapse in healthcare coverage due to a job loss. Similarly, certain individuals may qualify for unemployment benefits (depending on their visa status), though foreign expats may face additional work status eligibility hurdles.

Also, under the Family and Medical Leave Act (FMLA), these individuals that are still employed and balancing work and health issues may qualify for up to 12 weeks of job-protection and unpaid leave for qualified medical and family reasons. U.S. expats living abroad and returning home, however, face a significant eligibility hurdle with respect to the number of hours they worked in the U.S. before taking leave. Further, their reason for taking leave may not qualify under the FMLA (such as childcare issues due to school closures), and even if it does, the leave is unpaid, which creates additional financial hardship and may have implications on work visa requirements for foreign expats living in the U.S.

In response to the coronavirus crisis, the U.S. government recently enacted the Families First Coronavirus Response Act, Emergency Sick Leave Act, and the Emergency Family and Medical Leave Act (EFMLA). These laws may provide additional eligibility protections, financial relief for those forced to take leave, and possible resolution of some work visa issues for foreign expats living in the U.S. Individuals unable to work or telework because of school closure-related childcare issues are eligible for leave. Although the first two weeks are unpaid (unless paid through another company policy), the remaining ten workweeks of EFMLA are paid at two-thirds of the individual's salary (not exceeding US$200 per day).

Lastly, the Coronavirus Aid, Relief, and Economic Securities Act is another recent measure that may provide returning U.S. citizens and foreign expats in the U.S. with paid sick leave, insurance coverage for coronavirus testing, and a stimulus recovery rebate payment. Note that U.S. expats living abroad may not qualify for the stimulus payment if they have not yet filed U.S. taxes or have an active U.S. bank account, the means by which refunds are distributed instead of the postal service.

Getting Legal Assistance Wherever You Work and Live

If an expat had legal counsel to help negotiate the details of their assignment on the front end and well before the coronavirus outbreak, they might have benefitted from repatriation provisions that would have offered relief in this very uncertain time. Unfortunately, that foresight and planning doesn't always happen.

The attorneys in Outten & Golden's Executives & Professionals Practice Group deal with complex expat and multinational employment issues every day. By partnering with law firms in the E.U. and U.S. immigration firms, we are advising our multinational clients as they navigate these challenging times both at home and abroad.

To assist both clients, lawyers, and law firms, we have created a resource page on our website to communicate up-to-date information regarding changes to federal, state, and local laws and guidance from the U.S. Department of Labor, Homeland Security, and the Internal Revenue Service.

For employees anywhere in the world affected by the coronavirus pandemic, please contact the attorneys listed below and we will gladly assist you or help you find the best counsel for your situation.

Associate attorneys Cody Yorke and Fahreen Velji contributed to this article.