Pamela Tahim Thakur
With Remote Working a Necessary Reality in the COVID-19 Outbreak, What Should Employer’s Remote-Work
Amid the challenges faced by employers in the COVID-19 coronavirus outbreak, many are implementing remote-work arrangements for their employees. To be successful, employers need to outline expectations and guidelines for working outside the office. Generally, remote-work policies cover eligibility, working expectations, legal considerations, and technology issues.
With a great deal of employers dealing with remote working for the first time, they are facing new questions about how to manage their employees who are now working from home.
Clear policies are always advisable, but employers must be ready to adjust quickly as circumstances change and be aware that new Department of Labor guidelines could affect remote work. Remote-work policies should, therefore, clarify that expectations are subject to change quickly and unexpectedly given the current climate. With flexibility as a guide, there are certain core elements of working from home that should be addressed in a written policy.
Who Is Eligible and For How Long?
First, employers should define whom the policy covers and when it applies, as some workers may still be required to be at the worksite and others may not be able to work remotely. Employers may want to clarify whether the policy is only in effect during the coronavirus-related shutdown, although it is best not to promise a definitive date to return to the office or termination of the remote-work policy due to general uncertainty about the duration of COVID-19 and government lockdowns. A remote-work policy should, therefore, include a clause that it may be discontinued at will and at any time.
Evaluation of remote workers' performance should focus on work output and completion of objectives rather than on time-based performance. An appropriate level of communication between employees and their managers should be spelled out in the policy, including expectations of availability, responsiveness, and what modes of communication are to be used.
Legal Issues to Consider
Remote workers are entitled to the same legal protections that in-office workers have.
One of the most obvious compliance areas to address with remote employees is recording the hours of workers not exempt from state and federal overtime requirements.
Employers must, therefore, ensure that hourly employees know the number of hours they are expected to work, what they should do if they need to work outside of scheduled work hours, how to report time, and how to communicate about unanticipated overtime. The policy should be clear that all nonexempt telecommuting employees are required to accurately record all hours worked using the employer's time-keeping system. Hours worked in excess of those scheduled per day and per workweek should require the advance approval of a supervisor. But even if employees are instructed not to work more than 40 hours a week, they still must be paid overtime if they do.
Employers must set up a process to report hours for hourly remote workers and, to avoid high overtime costs, they should specify times that employees should and should not be working. Employees should not be permitted to work outside of these hours unless they have permission from their manager, in order to avoid employees unintentionally working “off the clock.” Employers should also be aware that meal and rest break rules also still apply for non-exempt, hourly workers.
Employers are also responsible for remote workers' health and safety. Some companies prefer or require an employee's remote work environment to be approved prior to working remotely. Injuries sustained by an employee in a home office location and in conjunction with his or her regular work duties are normally covered by a company's workers' compensation policy. Remote employees are responsible for notifying the employer of such injuries as soon as possible.
Technology and Supplies
Remote workers need the right tools to complete their work. Employers need to be clear about what equipment and resources they will provide, whether it's laptops and videoconferencing tools or payments for office supplies, phone calls, shipping and home-office modifications.
In California, employers are required to reimburse or indemnify employees for work-related expenses. A remote-work policy should clearly state what technology and necessary supplies will be paid for by the employer. Companies also should specify the level of tech support they will offer to remote workers and outline what remote employees should do when having technical difficulties.
Thakur Law Firm, APC can assist you in preparing a tailored remote-work policy for your business and answer any of your COVID-19 coronavirus-related employment law questions.