Remote work is becoming more permanent for now. Coming to work every day used to be the standard; now “work from home,” the “virtual workplace” and “telework” are normal. But, not all workers are on board, with many feeling unprepared. This makes it even more important for organizations to be thoughtful in how to shift to remote work.
Working Without An Office
Mark Zablow, CEO of Cogent Entertainment Marketing, went through this shift when the employees in Cogent’s New York and Los Angeles offices went virtual in March.
“The decision to shift to remote work wasn’t tough” according to Zablow, but “doing it the right way” was. “Moving to remote work without compromising company culture, client service, or legal compliance” was and is still a balancing act.
Checklist For The Virtual Shift
Here is a checklist of legal and practical issues organizations should consider for a remote workforce.
Remote Work Policy
Organizations should put in writing the key terms of a remote work arrangement, in what is often referred to as a “Telecommuting Agreement.” Terms typically include:
- Criteria for eligibility for remote work.
- If the remote work is temporary or an ongoing arrangement.
- If the arrangement is 100% remote or partial in-office work.
- Workspace safety and security/privacy.
- Performance and schedule expectations in remote environment.
- Revised job duties to match remote work requirements.
- Wage-and-hour compliance, including timekeeping, and break compliance.
- Integration with existing employee policies.
Scheduling And Timekeeping
The line between work and personal may become blurred when an employee uses the same location for both.
Organizations should define time management expectations for remote employees to address flexible work hours (for instance, if telecommuting due to childcare issues) and virtual availability.
The U.S. Department of Labor released guidance yesterday on the obligation to track and pay hourly employees for their remote work. The FAQ explains that:
- Work performed away from the primary worksite, including at the employee’s home, is treated the same as work performed at the primary worksite for purposes of compensability.
- Employers must pay employees for all hours of telework actually performed away from the primary worksite, including overtime work, provided that they knew or had reason to believe the work was performed. This is true even of hours of telework that are not authorized.
- Employers must pay employees for unreported hours of telework that they know or have reason to believe had been performed.
- Employers are not required to compensate employees for unreported hours of telework that they have no reason to believe had been performed because they neither knew nor should have known about the unreported hours.
- In most cases, employers may satisfy the obligation to pay remote employees by providing reasonable time-reporting procedures and paying employees for all reported hours.
In an office environment, organizations 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.
Organizations 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. For instance, remote workers may need:
- Internet connection.
- Mobile device and service.
- Apps or software.
- Printers (if documents cannot be utilized virtually for the position).
- Office supplies (pens, paper, printer cartridges).
- Ergonomic office furniture.
Many states have laws requiring employers to reimburse reasonable and necessary business expenses incurred by employees in the course of employment.
- 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 may depend on whether the remote arrangement and/or related expenses are optional (either because they are not necessary to perform job duties or are available in the office).
- Illinois, Massachusetts, Montana, and New Hampshire have specific state law requirements applicable to employee expense reimbursements.
- Employers in jurisdictions that do not have state-specific laws are not off the hook. Federal law prohibits an employer from requiring an employee to pay for the employer’s business expenses if doing so would reduce the employee’s earnings below the minimum wage.
- The method of reimbursing expenses should account for the fact that reimbursements are not wages for tax purposes.
Remote Workplace Setup
The type of work may impact the workspace needed to work remotely. Key considerations include:
- 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 (particularly for employees dealing with confidential trade secrets, customer information, or medical records).
- The extent the employer may structure/monitor/inspect physical workspace.
- If the employer or employee will provide desk, chair, office equipment supplies, IT equipment (computer/tablet/phone) and related support.
- Bring Your Own Device (BYOD) policy for employee personal devices used for work purposes.
Remote Workplace Safety
Organizations should 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.
- 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.
- Workers’ compensation insurance may cover remote workplace injuries and illnesses. Employees must report any work-related injuries if they occur while working remotely.
For a smooth switch, organizations should take a thoughtful approach to the virtual workplace that considers the perspective of the remote worker.