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This checklist describes the steps employers should take and legal requirements to consider when employing a remote workforce, including remote and hybrid work policies, electronic signatures, Immigration Reform and Control Act (IRCA) compliance, accommodation requests under the Americans with Disabilities Act (ADA), health and safety issues, workplace posters, information security, performance management and monitoring, and more. This checklist discusses federal requirements but is also useful for evaluating state law considerations.
Implement and Distribute a Remote Work Policy
- Draft a clear remote work policy that:
- defines employees’ eligibility to work remotely;
- provides a specific procedure for requesting approval to work remotely;
- directs employees to the employer’s reasonable accommodation procedures (see Comply with the ADA, below);
- explains the conditions of an authorized remote work arrangement;
- details employee responsibilities and expectations (such as work hours, timekeeping, accessibility, secure remote access procedures, and work expenses);
- sets out employer responsibilities (for example, technical support, equipment, and expense reimbursement);
- designates the employee’s specific job duties, work area, and break times to avoid liability for injuries that are not work-related (see Comply with Workers’ Compensation Laws, below, and Record Work-Related Injuries and Illnesses Under the OSH Act, below);
- reminds employees that they are expected to comply with all employer policies, including electronic communications policies; and
- notes, if applicable, that remote work is permitted only under certain exceptional circumstances (for example, as a health and safety measure during the COVID-19 pandemic).
- Distribute the remote work policy to all employees and include it in the employer’s employee handbook.
- Apply the remote work policy consistently to avoid discrimination claims (see Avoid Discrimination Claims, below), but remember that employers must make exceptions to certain policies as a reasonable accommodation under the Americans with Disabilities Act (ADA) (see Understand When Remote Work May Be a Reasonable Accommodation, below).
- Consider entering into a formal remote work agreement with remote employees.
- Consider implementing a flexible work policy with hybrid employees who split their workweek between office and remote work, which has become widespread as a result of the COVID-19 pandemic.
Comply with the ADA
Understand When Remote Work May Be a Reasonable Accommodation
- Allow employees with disabilities an equal opportunity to participate if remote work is offered by the employer (although the ADA does not require an employer to offer a remote work program to all employees).
- Understand that the ADA may require the employer to:
- change the location where work is performed; or
- modify workplace policies (for example, by permitting remote work even if otherwise prohibited or by waiving a one-year eligibility requirement).
- Engage in an interactive process with the employee to determine whether working remotely is a reasonable accommodation that would enable the employee to perform the essential functions of the job without undue hardship to the employer. During this process, the employer and employee should:
- identify and review the essential job functions of the position;
- consider limitations of the disability that make it difficult to do the job in the workplace;
- assess whether some or all of the functions can be performed at home and whether a part-time remote schedule is feasible;
- determine whether any technology or equipment is necessary to perform the job remotely (for example, a computer or technological support); and
- consider whether other accommodations exist that enable the employee to work full-time in the workplace.
- Do not deny a request to work remotely as a reasonable accommodation solely because a job involves some contact and coordination with other employees if the employee can:
- conduct meetings effectively by telephone; and
- exchange information quickly through email.
- Do not remove any essential job duties to permit an employee to work remotely but consider reassigning some minor job duties or marginal functions if they:
- cannot be performed outside the workplace; and
- are the only obstacle to permitting an employee to work remotely.
- Include onsite attendance in the position’s job description if it is an essential function of the job.
- Do not deny a disabled employee’s request to work remotely as unreasonable or as imposing undue hardship if employees without disabilities in the same job are permitted to work remotely (see Avoid Discrimination Claims, below).
- Review state anti-discrimination laws that may provide greater protections than the ADA.
- Implement and distribute a written policy on reasonable accommodations.
Make Online Employment Applications ADA Accessible
- Ensure online applications are accessible to remote applicants who have disabilities (such as those who are blind or visually impaired, deaf or hearing impaired, or have physical disabilities affecting manual dexterity) by:
- following the Web Content Accessibility Guidelines, which are industry guidelines for making web content accessible for persons with disabilities who use assistive technology, such as screen-reading software and captions;
- making information about reasonable accommodations readily available to applicants with disabilities; and
- providing alternative application methods for applicants whose disabilities prevent them from completing an online application.
Avoid Discrimination Claims
- Handle all requests to work remotely consistently and minimize the risk of discrimination claims by:
- defining who is eligible to request a remote work arrangement (see Implement and Distribute a Remote Work Policy, above);
- granting or denying requests to work remotely consistent with these policy limitations (but recognize that an accommodation under the ADA may include making an exception to a policy) (see Understand When Remote Work May Be a Reasonable Accommodation, above);
- requiring employees to submit written remote work requests to both managers and the human resources department; and
- training managers on how to handle remote work requests.
Use Electronic Signatures Appropriately
- Review federal and state laws governing the use of electronic signatures (e-signatures), including:
- the Electronic Signatures in Global and National Commerce Act (E-Sign Act); and
- the Uniform Electronic Transactions Act (UETA), a version of which has been adopted in most states.
- Use e-signatures when it is impractical to obtain hard copies of documents with handwritten signatures. This may include:
- employment applications;
- consent for background checks;
- new hire paperwork, including tax and employee benefits enrollment forms, as well as employee handbooks and other policies;
- acknowledgment of performance evaluations and discipline; and
- timekeeping records.
- Include compliant electronic consent language when seeking an electronic signature where applicable (for example, if an employee or applicant is considered a consumer under the E-Sign Act or state law).
- Ensure that any documents that need signatures are actually signed by the remote employee by some electronic method, as this is sometimes overlooked when collecting documents electronically.
- Consider using vendors, software, or technology to ensure electronic signatures are unique and verifiable and to help avoid claims that a signature is not authentic (though an employer does not need to use any particular technology to create a valid electronic signature).
- Confirm that any document requiring a remote employee’s signature was not altered before it was electronically signed.
- Review any applicable state laws governing electronic signatures that may apply where the remote employee resides and where the employer operates.
Comply with Immigration Laws
- If the Form I-9 process required by the Immigration Reform and Control Act cannot be completed for remote workers at a nearby employer worksite:
- deputize a trustworthy agent to review documents and sign the Form I-9 for the employer; and
- provide instructions to remote employees and agents so they can properly complete the employment eligibility verification Form I-9.
- Review any state laws that restrict who can complete immigration forms (see, for example, Cal. Bus. & Prof. Code § 22441(a)(1)).
Obtain and Provide New Hire Information
- Provide and obtain from remote employees the same information the employer provides and obtains from other newly hired employees (for example, tax forms, wage theft protection act notices, and employee handbooks and other policies).
- Provide virtual training and orientation sessions for new remote employees if in-person attendance is not possible.
- Obtain remote employees’ consent or acknowledgment for anything the employer may later need to prove that the remote employee understood, consented to, or acknowledged (for example, mandatory arbitration procedures, electronic communications policies, and anti-harassment policies).
- Include remote employees in the employer’s new hire reporting or registration requirements in any state where the employer operates or employs remote workers.
Comply with Wage and Hour Requirements
- Review DOL Field Assistance Bulletin (FAB) 2020-5, which provides guidance on employers’ obligations under the FLSA to exercise reasonable diligence when tracking compensable time worked by remote employees (for example, by providing a reasonable procedure for reporting unscheduled work).
- Compensate remote nonexempt employees for all hours worked, including work performed at home or another remote location, under the Fair Labor Standards Act.
- If the employer knows or has reason to believe an employee is performing work remotely, count it as time worked.
- Prohibit remote employees from performing any work at home that the employer does not want to be performed.
- Discipline employees for performing unauthorized or off-the-clock work but pay employees for all hours worked.
- Maintain records of hours worked each workday and workweek for remote nonexempt employees.
- Incorporate timekeeping practices in the employer’s policies on payroll practices, compensation, and remote working that:
- explain how remote employees should record working time; and
- prohibit conduct like off-the-clock work and falsification of time records
- Review and verify remote employees’ time records on a daily or weekly basis.
- Comply with state wage and hour laws, which may impose additional or different requirements on employers, including timekeeping and recordkeeping requirements.
Fulfill Workplace Posting Requirements
- Notify remote employees of their rights under federal employment statutes, many of which require notice through the display of posters in the workplace, by:
- posting notices in central offices that remote employees visit;
- providing email, website, or intranet notice when permitted;
- mailing notices that must be physically posted to individual employees working from their home or another remote site; and
- continuing to post hard copies of all required posters on the employer’s premises, even when the employer sends electronic or hard copies to remote employees.
- Review and comply with any state-specific posting requirements.
Comply with Workers’ Compensation Laws
- Understand that remote employees may be eligible to receive workers’ compensation for injuries or occupational illnesses that occur at home if the injury or illness arises out of and in the course of employment.
- Specify the employee’s specific job duties, work area, work hours, and break times in the remote employee’s job description, remote work agreement, or elsewhere to avoid liability for injuries that are not work-related at a remote employee’s home.
- Indicate in the employer’s remote work policy that:
- workers’ compensation does not apply to injuries to any third parties or members of the employee’s family on the employee’s premises; and
- remote employees should report any job-related injury to their manager as soon as possible (the policy should also direct the employee to the applicable reporting procedures).
Record Work-Related Injuries and Illnesses Under the OSH Act
- Record work-related workplace injuries and illnesses that occur at a remote employee’s home in accordance with the Occupational Safety and Health Act (OSH Act) if the injury or illness:
- occurs while the employee is performing work for pay or compensation in the home; and
- is directly related to the performance of work rather than the general home environment or setting.
- Ensure remote employees are aware of their obligation to report any work-related injury or illness.
Provide a Healthy and Safe Workplace
- Review Occupational Safety and Health Administration (OSHA) policy on home-based worksites and remember that:
- OSHA does not conduct inspections of employees’ home offices;
- OSHA does not hold employers liable for employees’ home offices and does not require employers to inspect the home offices of their employees;
- OSHA only conducts inspections of other home-based worksites (such as home manufacturing operations) when OSHA receives a complaint that a violation of a safety or health standard exists that threatens physical harm or that an imminent danger exists; and
- employers are responsible in home worksites for hazards caused by materials, equipment, or work processes the employer provides or requires to be used in an employee’s home.
- Ensure any materials and equipment the employer provides or requires meet safety standards and properly train remote employees on how to use them.
- Encourage remote employees to report workplace injuries and unsafe working conditions and notify them of the procedures to do so.
Manage Conduct and Performance Effectively
- To ensure employees comply with employer policies:
- inform remote employees in the applicable remote work policy or agreement that they are obligated to comply with the employer’s policies and that failure to follow policies can result in discipline, termination of the remote work arrangement, or termination of employment (and consider specifically mentioning certain policies of particular importance or significance to remote employees); and
- discipline remote employees for failure to follow the employer’s policies or other misconduct as the employer would discipline any other employee.
- Take steps to ensure remote employees are engaged and productive, including setting goals, indicating how goals are measured, providing training and regular performance feedback, and communicating regularly.
- Implement and distribute a clear electronic communications systems policy that informs remote employees that they have no expectation of privacy when using employer-owned resources and provides notice that the employer may:
- review employee emails;
- monitor internet usage;
- track employees’ keystrokes; and
- monitor employees’ login activity.
- Understand the limitations and risks of employee monitoring, including state law restrictions.
- Take steps to protect the employer’s trade secrets and other confidential information with remote employees, such as:
- requiring remote employees to use secure remote access procedures like a Virtual Private Network (VPN); and
- training remote employees on information security policies and practices, such as protecting information from being viewed or accessed by others, restricting information that can be stored on personal devices, updating software, and disposing of sensitive documents.
Account for Remote Employees Properly
- Track remote employees appropriately to determine application of any federal law that bases coverage on employees’ locations, such as under the Family and Medical Leave Act (FMLA), which requires counting remote employees:
- when determining the 50-employee threshold for employers to be covered under the FMLA; and
- toward the worksite they report to or the worksite from which they receive their assignments when determining whether 50 employees are employed at or within 75 miles of a particular worksite.
- Before conducting any plant closing or mass layoff, account for terminated remote employees to determine whether the action triggers the Worker Adjustment and Retraining Notification Act (WARN Act), keeping in mind the site of employment for a remote employee may be considered any location where the remote employee:
- is assigned as a home base;
- receives assignments; or
Determine Which State and Local Laws Apply to Remote Employees
- Undertake a careful analysis of which state and local employment laws apply to an employer’s remote employees, including laws governing hiring requirements, training, paid sick leave and other leave, payment of wages and overtime, meal and rest breaks, and required disclosures.
- Determine whether the remote employees’ state and local employment laws apply based on their remote work location.
- Evaluate the tax implications of remote employees’ work locations and ensure proper withholdings (but clarify that the employer does not provide tax advice and that employees should consult their personal tax advisors for any specific questions about taxes).
- Draft an employee handbook that complies with the laws of each state where the employer has remote (and other) employees.
This article originally appeared in Thomson Reuters Practical Law. © 2023 by Thomson Reuters. Thomson Reuters is a Sponsor of the GPSolo Division, and this article appears pursuant to the Division’s agreement with them. This article is not an endorsement by the ABA or the Division of any Thomson Reuters product or service.
Reprinted with permission in GPSolo eReport, Volume 12, Number 11, June 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.