Update July 22: This blog has been updated to reflect current guidance about employer considerations for transitioning to remote work.
Many organizations shifted to remote work to slow the spread of COVID-19 and promote the health and safety of their employees. Remote work is becoming more permanent in the near term, making the "virtual workplace" the new norm. Here is a checklist of legal and practical issues employers should consider for a remote workforce.
Implement a Remote Work Policy
Employers should put in writing the key terms of the remote work arrangement, in what is often referred to as a "Telecommuting Agreement." Crucial terms to consider include:
- 1. Criteria for eligibility for remote work— e.g., full- and part-time employees, exempt (salaried) and non-exempt (hourly) employees, objective factors such as job position/duties, and legitimate/non-discriminatory subjective factors such as length of employment or performance.
- 2. If the remote work is temporary or an ongoing arrangement.
- 3. If the arrangement is100 percent remote or partial in-office work.
- 4. Workspace safety and security/privacy.
- 5. Performance and schedule expectations in remote environment. Revise job descriptions to match remote work requirements.
- 6. Wage-and-hour compliance, including timekeeping, and break compliance.
- 7. Integration with existing employee policies. See here for more on reopening California workplaces and here for nationwide reopening checklist.
Workweek, Scheduling, Breaks and Timekeeping
The line between work and personal may become blurred when an employee uses the same location for both. Employers should define time management expectations for remote employees to address:
- 1. Flexible work hours (may be appropriate if telecommuting due to childcare issues)?
- 2. Virtual availability—e.g., email, phone, video—and to come into office on occasion?
- 3. Timekeeping policies apply to remote tracking of work hours and breaks, especially for non-exempt employees to avoid off-the-clock and break violations. See here for more on California wage-and-hour considerations during COVID-19.
See here for the Department of Labor's updated FLSA FAQ nos. 14 and 15.
In an office environment, employers typically provide what employees need to complete the job. The opposite may be true in a remote work environment, where employees must provide what they need to do the work. Employers should determine everything employees need to work remotely, taking into account demands on productivity, and then decide whether to provide or reimburse employees for it.
- 1. Remote workers may need:
- a. Computer/laptop.
- b. Internet (reasonable portion of employee's monthly plan).
- c. Cell phone (reasonable portion).
- d. Apps or software.
- e. Printers (only if documents cannot be utilized virtually for the position).
- f. Office supplies (pens, paper, printer cartridges).
- g. Ergonomic office furniture.
- 2. Comply with unique state legal requirements on expense reimbursement.
- a. Many states have laws requiring employers to reimburse reasonable and necessary business expenses incurred by employees in the course of employment.
- b. California requires employers to indemnify the employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties. Whether certain expenses must be reimbursed will depend on whether the telework arrangement and/or related expenses are optional (i.e., either because they are not necessary to perform job duties or are available in the office). See here for more on expense reimbursement requirements in California.
- c. Illinois, Massachusetts, Montana, and New Hampshire also have specific state law requirements applicable to employee expense reimbursements.
- d. Employers in jurisdictions that do not have state-specific laws are not off the hook with regard to potential liability related to business expenses incurred by employees working from home. Under the Fair Labor Standards Act, no employer can require an employee to pay for the employer's business expenses if doing so would reduce the employee's earnings below the required minimum wage.
- 3. The method of reimbursing expenses should account for the fact that reimbursements are not wages for tax purposes.
The type of work will impact the workspace needed to work remotely and meet the employer's expectations. Key considerations include:
- 1. The security of workspace, such as restrictions on use by other members of the household for non-work related purposes and password-protection of devices. This is particularly important for employees dealing with confidential trade secrets, customer information, or medical records.
- 2. The extent the employer may structure/monitor/inspect physical workspace.
- 3. If the employer or employee will provide desk, chair, office equipment supplies, IT equipment (computer/tablet/phone) and related support.
- 4. Bring Your Own Device (BYOD) policy for employee personal devices used for work purposes.
Employers must consider workplace safety issues for remote workers.
- Federal OSHA does not have specific regulations regarding home-office/telework. But there is a general obligation (General Duty Clause) to protect employees from recognized hazards that arguably could apply to home offices. See here for the Department of Labor's FAQ no. 12.
- If a home-office worker is infected with COVID-19 while engaged with work (even at home), and the infection qualifies as a recordable or reportable illness, then the employer must record the illness on its OSHA 300 log or report the illness to OSHA. See here for more on OSHA guidance about COVID-19 in the workplace.
- Workers' compensation insurance may cover remote workplace injuries and illnesses. Employees must report any work-related injuries if they occur while working remotely. See here for more on workers' compensation insurance and COVID-19.
The transition to remote workplaces will depend on a variety of factors, including an employer's size, location, organizational structure, and industry. Employers who are proactive during the transition and nimble during it may maintain or even increase employee morale and productivity, which inherently decreases risk of claims.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.