By Stella Skaljac

COVID-19 concerns have thrust the idea of working remotely into businesses and organizations that may not have ever considered such an arrangement. The Centers for Disease Control (CDC) and our governing institutions continue to urge Americans to do what they can to slow the spread of the virus by social and physical distancing. For many of our clients, this means permitting employees to work from home when jobs are conducive to teleworking.  

Quickly transitioning employees out of the workplace and into remote work arrangements will not only be a way to reduce transmission rates of the disease but can also maintain acceptable levels of productivity and help companies remain viable.  For some employers, this may have already been an established practice and company-wide policy.  For others, however, this had never been contemplated. 

Over the last couple weeks, our attorneys have received many requests to draft remote work policies.  The sense of urgency to transition employees out of their physical work environment and into a home office has taken center stage in many employment-related coronavirus conversations.  While we must get these policies in place in an expeditious manner, always good practice to consult an expert.

There are several considerations and best practices to take into account when having employees work-from-home.  Many of these include the infrastructure necessary to carry out business operations remotely, agreed-upon assignments and responsibilities during the remote work period, official working hours, and any liability concerns.  All these issues should be outlined in a written remote work policy.

During this time of uncertainty, employees will likely appreciate a policy providing clarity and certainty.  A written remote work policy does not have to be long or convoluted.  With everything moving fast in the world right now, employers will want to develop a policy that offers a simple framework focusing on expectations, frequency of communication, and provisions that safeguard information and mitigate against potential liability risks.

As for the equipment and resources necessary to carry out a remote employee’s job responsibilities successfully, an employer must carefully think through what is necessary and whether it is feasible to provide some or all of these tools to remote working employees.  Employers may want to ask the following questions:

  • Will the employee need a laptop? Special software or programs installed?  A monitor or printer?
  • What collaborative technology platforms should we consider in order to keep remote workers communicating with each other and their managers? Set up video conferencing?
  • Will there be a stipend or reimbursement provided to purchase necessary equipment and tools for an employee’s home office? Will they require other office infrastructure like filing systems?

As for keeping employee’s focused on accomplishing tasks and any special assignments while working from home, it will be critical to discuss the measures for success and then document such measures in the organization's policy.  Being absolutely clear on expected outcomes will be key to a work-from-home arrangement.  Employers may want to ask:

  • What job duties and responsibilities will be the employee’s priority when working remotely?
  • Are there any non-essential functions that can be eliminated during the work-from-home period?
  • How can metrics and goals be used to keep employees on track and how will they be continually communicated throughout the remote work period? How often should managers and employees “check in” to ensure expectations are being met and employees are staying productive?

In addition to addressing equipment and expectations, essential to a well-written work-from-home policy is ensuring data-security compliance is in order, especially for regulated industries such as healthcare, finance or law.  Most employers have policies in place regarding the access, transmission and storing of confidential or proprietary information. Working from home can create risks if proper mechanisms are lacking with respect to safeguarding such data. Therefore, certain protocols should be included in a remote work policy:

  • What would be the impact if certain company or client information is compromised or release to competitors or outside third parties?
  • What risks can occur if employees are using their own computers and how can the employer reduce the risk of disclosures through implementation of security standards?
  • Should an employer consider password-protected remote access and anti-virus software to help mitigate against cybersecurity risks?

Besides the protection of data and cybersecurity risks that could ultimately have a devastating impact on a business, employers will also want to address a few other potential liability areas, such as:

  • Wage and Hour Issues– to avoid violations under the Fair Labor Standards Act (FLSA), employers must require non-exempt employees working from home to accurately record their time worked. Non-exempt employees are entitled to overtime pay per the FLSA and, therefore, it’s important that employees understand that they may not work “off the clock” (even while remotely working) without prior express management approval.  A best practice would be to set “core working hours” and make it clear that non-exempt employees should not be checking email or conducting any work during off hours without prior authorization.
  • Workers Compensation– when granting an employee permission to work from home, the employer should determine whether remote workers’ environments are suitable for getting the job done and do not pose any undue risk. Remember, if an employee is hurt on the job, even while working at home, the employer could potentially be held liable or the employee may be eligible for workers’ compensation.  
  • Discrimination– employers must ensure they are not treating employees who are working from home differently than any other employee who is able and willing to work on-site. For instance, if most of your employees are women who decide to work from home during the COVID-19 period to be able to also take care of their children, careful not to take any future employment actions that may appear to be discriminatory in nature (i.e. not providing a promotional opportunity because the employee was “out of sight, out of mind” while they were working remotely).  To avoid this, the policy should discuss remote workers’ rights to on-going training and advancement opportunities. 

When implementing a work-from-home arrangement, the best thing an employer can do is provide clear guidance and communication through a written document.  Not only will a sound remote work policy keep employees productive and provide a sense of continuity, it will help avoid potential legal problems.  Feel free to reach out to our employment practices group if you need assistance in developing a Remote Work Policy as our attorneys can offer expert guidance in this area.

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