Remote work is not an entirely new concept in employment law; rather, technological advances of the past several decades led to an increased number of companies offering remote work options. Employers offering remote work likely benefit from overhead savings, while remote employees generally appreciate no commute, increased job satisfaction, flexibility, and, in many cases, increased productivity. The COVID-19 pandemic (and related shelter-in-place orders) caused additional employers to explore and quickly implement remote work options for their workforce. Gallop reported as of August 31, 2020, one in four U.S. workers work entirely from home, while up to 49 percent report working remotely at some point during their careers. Some might view remote work as a temporary solution, but it appears just as likely that remote work remains a viable and preferable option for employers moving forward. Regardless, employers should remember the following general, non-exhaustive best practices (and avoid the cautionary tale situations).
Draft and Distribute a Remote Work Policy
Setting clear guidance and expectations of the remote workforce is of paramount importance. Accordingly, employers should draft and distribute a comprehensive remote work policy that may include some or all of the following: defined employee eligibility to work remotely; specific procedure to request approval; reference to applicable reasonable accommodation procedures for employees with disabilities; employee expectations (such as work hours, timekeeping, accessibility, secure remote access procedures, and work-related expenses); employer responsibilities (such as technical support, equipment provided, and expense reimbursements); designated work areas and break times to avoid liability for injuries that are not work-related; reminders that the employee remains subject to all employer policies; and, if applicable, the temporary nature and conditions of the remote work arrangement (for example, the remote work arrangement is only available during governmental orders necessitating remote work). Employers should distribute the remote work policy to all employees, include it in the employer handbook, and ask employees to sign and acknowledge receipt and understanding of the remote work policy.
Due to wage and hour issues discussed below, one best practice might limit overtime-exempt employees’ remote work. Because exempt employees are likely paid a fixed salary, concerns regarding accurate timekeeping, off-the-clock work, or unauthorized work hours are alleviated by only allowing exempt employees to work remotely. Also, limiting remote work to only long-standing, trusted employees (i.e., full-time employees with at least one year of employment, demonstrated good work habits, history of timely deliverables, and good evaluations) might limit accountability and productivity concerns.
Procrastination or panic could lead employers to send certain workers to work from home without a clear remote work policy. Such action is fertile ground for discrimination claims (because eligibility is undefined), confusion regarding expenses (employees attempting to bill costly equipment and services to the employer), misunderstandings regarding work expectations (employees working at odd hours or performing unauthorized work), lack of clarity regarding the applicability of other policies (employee drinking a glass of wine – regardless of how much we all might think we need that during a pandemic – during work hours or employee cruising the internet for their favorite form of debauchery or social media conflict), and increased liability for workplace injuries (employee tripping over their dog or falling downstairs during what may or may not be considered authorized work time).
Be Mindful of Compliance with Discrimination Laws
The Americans with Disabilities Act (ADA) and applicable state and local laws may require employers to modify a remote work policy to allow employees with disabilities an equal opportunity to participate in remote work if the employer offers it. For example, employers may have to adjust remote work eligibility requirements, such as waiving temporal restrictions on remote work (e.g., employees must work at least one year for the company before they are eligible to work remotely). To comply with applicable discrimination laws, if a disabled employee requests remote work as an accommodation for a disability, the employer should engage in the interactive process under the ADA to determine whether remote work is a reasonable accommodation that would enable the employee to perform essential functions of the position without undue hardship to the employer. Consistent evaluation, approval, and non-discriminatory implementation of remote working will also reduce the risk of other types of discrimination claims. For example, employers should avoid broad restrictions based on prejudices or misguided and uninformed ideas related to certain protected classes of individuals when implementing remote work eligibility.
Comply with Wage and Hour Requirements
One of the biggest fears regarding remote work is accountability and productivity since employees work with all of the temptations of being at home. It is not outside the realm of possibility that an employee could choose to nap during work hours, take breaks to perform household chores, or run errands. Employers must compensate employees for all hours spent advancing the employer’s interests under the Fair Labor Standards Act (FLSA), including work that may be unauthorized or performed off-the-clock. Accordingly, any remote work policy should include timekeeping practices (clock-in/clock-out), accountability expectations (work hours), and prohibit unauthorized or off-the-clock work. Employers generally may discipline employees for performing unauthorized or off-the-clock work while also paying employees for that work time to ensure compliance with the FLSA.
Comply with Workers’ Compensation Laws and Occupational Safety and Health (OSH) Act
Employees working from home may be eligible to receive workers’ compensation for injuries or occupational illnesses if the injury or illness arises out of and in the course of employment. The remote work policy (or other written documentation, such as a job description) should specify job duties, work area, work hours, and break times to limit or avoid liability for injuries that are not work-related at a remote employee’s home. Such specificity may be the difference between a covered claim (falling on stairs while running to answer a work call) and an uncovered claim (falling on stairs while going to make lunch). Employers should also inform employees to immediately report any job-related injury to their supervisor as soon as possible. The OSH Act similarly requires employers to record work-related injuries and illnesses that occur at a remote employee’s home if the injury occurs while the employee is performing work for pay or compensation in the home and is directly related to work performance rather than the general home environment or setting.
Preparation and documentation are critical to a successful remote work arrangement. Employers should work closely with legal counsel to ensure compliance with federal and state employment laws regarding remote working, especially as this work option gains popularity (and necessity).