Consider what you can and must do to comply with the law while maintaining access to a pool of qualified workers.
Finding people to work as certified nursing assistants (CNAs) and other frontline positions in post-acute and long-term care facilities is challenging at best. This challenge could intensify in the coming months and years, as efforts to reform U.S. immigration policies threaten to further shrink the pool of potential workers in healthcare. Immigrants make up 1 in 4 direct-care workers nationwide; and in recent years, organizations have increasingly looked to immigrants to address their workforce shortages. What do you need to know to avoid staffing shortages as immigration reform moves forward?
Currently, U.S. immigrant law provides little opportunity for foreign caregivers to work on a temporary basis or to become permanent residents. There are no temporary visas targeting direct-care workers; and the number of immigrant visas available for unskilled workers is very limited. An employer could sponsor a foreign-born worker for permanent immigration; however, the waiting period could be years.
The U.S. Immigration and Customs Enforcement (ICE) and the U.S. Customs and Border Protection (CBP) are responsible for enforcement at or near U.S. borders. Their power is limited by constitutional protection against “unreasonable search and seizure;” that is, at the time of the search, could the person reasonably expect privacy? Your staff (and residents) may be more vulnerable to immigration enforcement action when they are in public areas, as opposed to personal rooms or other private spaces. Fortunately, both ICE and CBP consider healthcare facilities to be “sensitive locations” where action is to be avoided unless “exigent circumstances exist” or the officers have prior authorization from appropriate agency officials to take enforcement actions. According to ICE, enforcement actions may include arrests, interviews, searches, and surveillance.
Under the Immigration Reform and Control Act of 1986 (IRCA) an employer must verify the identity and employment eligibility of all employees by completing an Employment Eligibility Verification Form (I-9) and reviewing documents showing the employee’s identity and employment authorization. The employer must verify and attest under penalty of perjury that an employee presented required documents to prove his or her identity and right to work. While employers must verify an employee’s authorization to work, they can’t discriminate on the basis of citizenship, immigration status, or national origin.
Once an organization has hired an immigrant, it must comply with federal anti-discrimination laws. For instance, the organization can’t require employees to speak only English in the workplace unless it can show a justification in terms of business necessity. According to the U.S. Equal Employment Opportunity Commission, a “rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.”
The extent and details of immigration reform are still being decided in the courts, for the most part. In the meantime, work with your legal counsel to ensure compliance with current laws and regulations; and be prepared to answer employees’ questions and concerns.