Covid-19 has upended everything we know and expect about our daily work routine.  For the near term, and possibly even much of the foreseeable future, we will be forced to embrace some degree of social distancing in our work lives, meaning that many employees will have to work from home.

Given this, two fundamental issues arise:  How do we transplant legal responsibilities from the office environment to remote working; and, how do we maintain operational and productivity effectiveness at a distance? Thankfully, addressing these issues is not that difficult. But like so many things in law and business, the devil is in the details.

So let’s look at a few things we can do to make “work from home” as predictable and smooth as possible.  Well, the first thing we need to do is take a breath, relax and understand that no matter how we approach this, a healthy dose of flexibility and tolerance will be necessary.  If at all possible, mutual trust and empathy will also go a long way to making this adjustment … and, of course, patience.

Below I’ve provided a number of tips for employers wrestling with the legal and operational issues attendant to work at home employment.  It’s important that both employers and employees recognise that the emergent nature of Covid-19 has not allowed for much preparation or planning.  Consequently, implementation of these measures may require some time and patience.  It is also important that employers remain aware of all issues throughout the process and in their discussions with employees.

 

LEGAL ISSUES FOR EMPLOYERS

An important point to remember is that the legal relationship between employer and employee doesn’t change because of remote work.  The rights and responsibilities remain the same. They just get transplanted.  The challenge is to identify those issues that require special attention in remote working.  They are as follows:

1. Worker’s Compensation Insurance Coverage. Employers are responsible for injuries suffered by employees while at work.  This can often include employees working from home.  Be sure to confirm with your workers compensation and general liabilities insurers or brokers whether you’re covered for this. It may also be an idea for employees to make sure that working form home is permitted and/or covered under their personal homeowner policies.
2. Occupational Safety and Health. The federal Occupational Safety and Health Act, as well as similar state laws, require employers to provide a safe workplace, and this extends to employees working from home.  Employees should ensure that their work space is hazard free.  Since written documentation is always best practice, you should provide your employee with a written template for a work station risk assessment, identifying and neutralizing any work hazards (electrical wires, trip hazards, etc.).  You might even consider having them provide a photo of the work area.  Work from home risk assessment templates are easily found online.
3. Disability Accommodation. An employer’s obligation to provide accommodation to disabled workers extends to work at home.  For any employee who would be afforded ergonomic computer equipment or other workplace accessories in the office, employers should offer them the same at home.
4. Non-Discriminatory Work from Home Policies. If any amount fewer than all workers will be working from home, make sure that your work from home policies and practices are non-discriminatory.  What that means is that both your work from home policy and the manner in which you administer it must have a legitimate business purpose. If some workers are not permitted to work from home or others required to do so, document how you come to these conclusions: What the available choices are; their relative effect on your business; and why the chosen policy is most appropriate for business purposes.  Be sure to place this all in the context of the exigencies of dealing with the Covid-19 and how that impacts business requirements.
5. Overtime Hours and Payment. Your responsibilities here originate from the federal Fair Labor Standards Act (FLSA), and any similar state laws that might augment this.  Under this law, non-exempt employees must be paid 1.5 times their ordinary pay for each hour over 40 worked during a week, whether in the office or at home.  Exempt employees are those in certain higher-end roles in Executive, Professional and Administrative roles, earning over $35,568 annually ($684/week).  A summary of the law can be found on the US Dept of Labor website here: https://www.dol.gov/agencies/whd/flsa.  You can restrict the hours your employee works from home, so long as the employee can reasonably be expected to accomplish assigned tasks within the restricted time.  But any time over 40 hours/week must be paid overtime. The challenge with overtime is establishing a reliable system for logging hours worked at home.  That’s discussed in greater detail further below.
6. Meal and Rest Breaks. If your employees have meal or rest breaks provided either by contract or state law, then those must be adhered to when they work at home.  If the applicable law requires that no work be done during breaks then again, the same applies to work at home. Employees should be advised that these rights are as equally effective at home as they are in the office.

 

OPERATIONAL ISSUES REGARDING EMPLOYEES WORKING AT HOME

1. Recording Hours Worked. While non-exempt employees must record hours worked, an employer can require all employees, exempt and non-exempt alike, to do so. Such records should include all work, including phone calls and emails, regardless of the time of day or night. Having reliable records of time worked by non-exempt employees is so important simply because in their absence, an employee can claim at some later date that overtime hours had been worked and must be paid by the employer. Any system whereby the employee provides in writing the number of hours worked is good. This can be the employer’s existing system, if transplantable to the employee’s home, or alternatively on paper, on an excel sheet or by online programs easily available on the internet.
2. Monitoring Employee Emails and Working Time. Employers are permitted to monitor employee emails, provided that it is done pursuant to written policies of the employer; that it’s for a legitimate business purpose, such as confirming productivity; and that the employee does not have a reasonable expectation of privacy. It’s this last point that can get sticky, for what happens if the employee is using their own home computer for work at home?  In this case, the employer would require clear and detailed written consent from the employee.  Regarding productivity, nonexempt employees who do not work a full day can have wages reduced, but this is highly dependent upon circumstances and must be confirmed on a case-by-case basis. In all events, tolerance and flexibility are vital when considering employee productivity.  Covid-19 will continue to place tremendous time, logistical and emotional burdens on families, especially where children, school and childcare are concerned.
3. Equipment and Expense Reimbursement. It follows from much written above that in the ideal scenario, the employer will provide employees with necessary work equipment such as computers and telephones.  Where that is not possible and employees need to work on their own equipment, then various measures should be taken.  Confidentiality and data protection are mentioned below.  In addition to these, the employer needs to consider their state’s law regarding expense reimbursement for use of the employee’s personal equipment. This should also include consideration of cell phone, internet and utility bills.
4. Privacy, Data Security and Protection of Confidential Information. As mentioned earlier, best practice to reduce these concerns is use of the employer’s equipment, installed with up-to-date security protection.  Policies and procedures should be commensurate with those required in the office.  Aside from these, a primary consideration will be exposure of confidential information to 3^rd parties at the employee’s home.  Ideally, this should be subject to a risk assessment similar to that for health and safety.  That is, the employee should assess vulnerabilities and propose measures to reduce or eliminate them.  In addition, the employer should bolster these with its own policies surrounding exposure of such information (i.e., don’t leave computers on and open; don’t integrate company information with personal information, etc.).

 

While the foregoing seems like a great deal to consider, it can actually be addressed in a fairly simple and systematic manner.  Ideally, with a little forethought, it can and should all be contained in a relatively short written agreement to be signed by the employer and all work from home employees.  These agreements can take many forms, but two things they should all contain are a statement that the agreement has been prepared to deal with the extreme demands of Covid-19 realities; and, that upon appropriate circumstances, the agreement can be terminated, requiring employees to once again return to the office for work.  Barring that, at the least written emergency work from home policies, tailored to your operations, should be adopted and distributed to all employees.