law

Before the COVID-19 pandemic, remote work was already becoming increasingly common in the United States, and many companies already had remote work policies and procedures in place.

However, in the blink of an eye, COVID-19 forced companies across the US to adopt remote work whether they were ready or not — and many were not. Because of that, companies have found themselves scrambling to grapple with the legal considerations associated with remote work to ensure they are meeting all of their obligations to their employees while maintaining their strategic plans during this time of uncertainty.

To help smooth the transition, this article will review a number of common legal issues to be aware of while managing a remote workforce.

Establish a Remote Work Policy (If You Don’t Already Have One)

A remote work policy should clearly lay out the expectations you have for your employees as they embark on their remote work routines. Consider all aspects of their work, and make sure each employee understands what is expected of them.

The No. 1 item you should convey to your employees is that you expect them to help the company maintain normal business operations during this period of time to the extent possible. Make sure employees are aware that, even though they are working remotely, they still must abide by all other workplace policies and procedures. If your remote work policy is temporary and only applicable during COVID-19, make that clear in the policy. Have employees acknowledge receipt and understanding of the policy via signature, and keep a copy of the acknowledgement in the employee’s file.

While the list below is not all inclusive, you should take the following into consideration when drafting a remote work policy:

  1. Consider how strict your policy will be. Are your workers simply encouraged to work at home, or are they absolutely barred from coming to the office? This should be considered on a state-by-state basis in connection with applicable stay-at-home or shelter-in-place orders.
  2. Include a detailed statement regarding employees’ obligations in connection with recording time and overtime, as discussed in more detail below.
  3. Will employees need to be available at all times during working hours, or will meetings and appointments be scheduled ahead of time?
  4. Consider the devices employees will use to perform their work. Will employees perform work on their own devices, and if so, do you have a comprehensive bring your own device (BYOD) policy in place?

Wage and Hour Issues

First and foremost, you need to ensure your employees are properly classified. An incorrect classification could be extremely costly.

It is easier to handle exempt salaried employees, as they will continue to be paid their regular salaries. Payroll becomes more complicated with non-exempt hourly workers, as you’ll need to monitor overtime. Thus, you should have a clear policy that requires each non-exempt employee to: accurately report all hours worked; not work more than 40 hours in a workweek (or in excess of the daily maximum in those states that require overtime pay in excess of eight hours in a day) without written authorization; and clock in and out via email, telephone, or other method chosen by your company. The policy should also clearly notify employees they will be subject to termination for failure to truthfully report hours worked.

Data Security

You will want to consider whether you have the support in place to assist with the inevitable questions and IT problems that will arise. Work with internal and external IT vendors to make sure the equipment employees are using is safe. Develop policies regarding the use of VPNs and other remote/cloud-based networks. Develop policies regarding what client/customer information may be brought home or accessed from home, particularly if the information is sensitive, such as financial documentation or documents containing personally identifiable information. Your security measures should cover both company-owned and employee-owned computers, laptops, and mobile devices.

Discrimination Concerns

Make sure you are offering remote work options fairly to all employees. Of course, there are certain jobs that cannot feasibly be done from home, but problems arises when you grant some employees the ability to work remotely but do not extend the same permission to other employees who could also do their jobs from home. Further, if you let employees of one protected class work remotely but not those of another, you will likely find yourself in trouble down the road.

Disability Accommodations

If employees have previously requested accommodations, make sure those are being maintained (to the extent possible) in the remote-work environment. Stay in touch with those employees and their supervisors to ensure any accommodations remain effective given the ever-changing circumstances.

For new accommodation requests, be as flexible as possible in requesting documentation while still adhering to company policies and procedures. After all, you do not want to require employees to visit a doctor’s office in person during this time.

Safety and Health Concerns

OSHA and workers’ compensation issues still need to be considered when you have employees working remotely. If an employee is injured while working at home, the key issue will be whether the employee was injured while performing work for the company (and not, say, carrying laundry upstairs). This is why robust policies for reporting work hours are necessary. If an employee reports an injury, follow normal procedures, but pay attention to what the employee was doing when the injury occurred.

Productivity and Stress

While not a strictly legal consideration, you ultimately want your employees to be productive and successful during this time. There are several steps you can take to ensure remote work goes well.

First, recognize that employee stress and burnout could be at all-time highs right now. Be as flexible and as responsive as possible when dealing with the needs of your workers. Check in with your employees often, and offer support and guidance where you can.

Some employees may feel disconnected from the company. Combat that by developing and distributing an agenda for virtual get-togethers and meetings, or by scheduling virtual team lunches and social time where employees can interact more casually.

Finally, recognize you are not babysitting your employees while they are performing work at the office, so you shouldn’t begin to micromanage them while they work from home. Keep an eye on the bigger picture and track overall productivity, not moment-by-moment activities.

Lauren C. Tompkins is an associate in the Cleveland office of Fisher Phillips.

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