Not so long ago, telecommuting or “working from home” was just a growing employment practice – often a desirable employee perk used to attract top-talent (especially when unemployment rates were at historic lows). As a result of the coronavirus disease 2019 (COVID-19) pandemic, however, many companies, including those that may have opposed remote working in the past, have been forced to embrace such arrangements and come to terms with the legal complexities—as well as opportunities—surrounding telecommuting. According to Gallup Panel data, the percentage of employed adults who said that they have worked from home due to COVID-19 topped 62 percent in mid-April. This includes a large number of non-exempt employees who traditionally may not have been included in work-from-home opportunities.
Even as stay-at-home orders lift and physical workplaces gradually reopen, many companies may continue to offer remote working opportunities to help with social distancing and other infection control and prevention strategies, address employee needs (eg, school closures or vulnerable employees), and promote business continuity. To help ensure the success of work-from-home arrangements, employers are encouraged to proactively address various risks, from wage-and-hour issues to health and safety concerns and cyber threats.
Below we address key considerations for employers utilizing telecommuting in the age of COVID-19.
Many of the wage-and-hour issues we addressed in our earlier post, Out of sight, but not out of mind, are still applicable; however, given that more workers are telecommuting than ever before, including groups of employees who may previously not have been permitted to work remotely, employers may wish to consider reiterating and disseminating timekeeping policies to all employees. Employers are also urged to remind supervisors to be alert to any indication that non-exempt employees are working off the clock − such as by receiving an after-hours email or phone call − and address the issue promptly.
In addition, if, only exempt employees were permitted to work remotely previously, employers are encouraged to update their timekeeping protocols to account for the tracking of non-exempt hours worked. For example, employers may consider requiring employees to notify their supervisors by email of their start and end times and lunch break each day and to certify the accuracy of time records on a regular basis.
Relatedly, wage-and-hour issues arise when considering not only who is now working from home, but also from where such individuals are telecommuting. In other words, employers are urged to consider whether employees are working in states different than their regular office location due to telecommuting arrangements. Depending on the circumstances, such as how long the employee intends to work from home, employers may want to consider adjusting compensation to meet the telecommuting employee’s state’s minimum wage or exempt-status thresholds. Likewise, employers and employees are encouraged to review whether there could be tax implications from employees working from a different state while telecommuting. To get ahead of such issues, employers are urged to determine where employees plan to telework and require them to notify the employer of any changes.
Health and safety
Health and safety issues are top of mind for everyone in the current pandemic and will dictate when and how employers reopen their workplaces as stay-at-home orders are lifted. While much of the focus has been on creating a safe and healthy workplace to which employees may return (when government orders permit), employers are encouraged to consider how their obligation to promote a safe working environment may extend to employees working remotely. Employees may be eligible for workers’ compensation benefits for injuries or illnesses that occur while working away from the office, such as in their own homes. To address risks and potential liability, employers are urged to consider policies and agreements for remote workers. See our earlier post, Helping Employers Weather the Storm, for more information.
Employers are also encouraged to be mindful of reporting requirements. Under the Occupational Safety and Health Act (“OSHA”) and its corresponding safety and health regulations, employers with more than 10 employees must record certain work-related injuries and illnesses. The regulations provide that this requirement extends to employees who work from home, “if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” 29. C.F.R. § 1904.5(b)(7).
Remote and flexible working arrangements are likely to play a key role in reopening plans. Some employers are dividing employees into one or more teams and having them alternate workweeks or bringing employees back on a voluntary basis, with those unable or unwilling to return able to continue working remotely. Regardless of the specific strategy, policies are to be implemented in a nondiscriminatory fashion.
The concept of employers wishing to keep a proverbial digital eye on their employees is not unique to the COVID-19 pandemic. Keystroke and other tracking software has been around for years, and a survey conducted by research and advisory company Gartner found that in 2018, 50 percent of 239 large corporations were using some type of monitoring techniques to watch over their workforce. While employers may be tempted to keep tabs on employee productivity to gain confidence that employees are not just working from home but working productively from home, in certain jurisdictions such practices may implicate employee privacy rights, depending on the circumstances.
Employers are encouraged to be transparent with employees about the measures they are taking and why. Employers may also want to consider other ways of addressing productivity issues, such as by having supervisors set daily or weekly goals for their direct reports.
Employers with written telecommuting policies in place may want to review them to determine whether any temporary changes are necessary to address COVID-19-related circumstances. Many employees are working from home with children underfoot or may have caregiving responsibilities. This is especially important in jurisdictions where caregiver status and parental status are protected classes. Again, any telecommuting or remote work policy needs to be administered and implemented in a non-discriminatory manner.
As with other written policies, employers are urged to consider whether to obtain employee acknowledgement and consent. While people are working from home and not physically able to sign and return a document, this may prove particularly challenging. For electronic signatures to be valid for these purposes (and others), it may be feasible to use electronic signature technology that mitigates attribution and authentication issues (and helps control document integrity).
The influx of telecommuting due to COVID-19 means that more employees who may not have previously been permitted to work remotely are telecommuting using their own computers, Internet, phones, and other equipment. Employers are encouraged to be mindful that some state laws mandate the reimbursement for certain business expenses while working from home. Additionally, based on US Department of Labor guidance, if a non-exempt employee works from home and pays for business expenses when doing so, employers are urged to avoid situations in which the non-exempt employee’s earnings could inadvertently fall below the applicable minimum wage or overtime rate.
Employers are encouraged to work with their IT departments to determine how they will protect sensitive and corporate information outside of the cybersecurity protections typically afforded by the four walls of the office. This could include requiring employees to work on a virtual private network (VPN) if possible, promoting wireless safety practices by employees such as not working from public Wi-Fi, and requiring all computers and devices have up-to-date firewalls installed.
The above list is not exhaustive by any means. Telecommuting is, and always has been, a complicated employment practice that requires a greater focus on how work is being done, which may not be required when employees are physically clocking in at the office. However, if COVID-19 has shown us anything, it is that telecommuting on a widespread scale is possible, and in fact, is effective in many ways employers may not have considered prior to the pandemic. Only time will tell whether this experience will have lasting effects on not only how we work, but also where we work.
For advice on these and other employee benefit questions or implications in light of the COVID-19 pandemic, please contact a member of the DLA Piper Employment group or your DLA Piper relationship attorney.
This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.