Coronavirus (COVID-19): Remote Work
Author: XpertHR Editorial Team
As the coronavirus (COVID-19) outbreak becomes more acute, employers must consider remote working options and implement emergency communications plans.
While an organization already may have been offering flexible work options to certain teams or job classifications, a public health crisis may propel an employer to scale those options to most, if not all, of its workforce.
The Equal Employment Opportunity Commission (EEOC) has stated that remote work is one strategy to control transmission of the coronavirus. Federal, state and local labor agencies are following Centers for Disease Control (CDC) recommendations for social distancing and limiting face-to-face contact. The Occupational Safety and Health Administration (OSHA) enforces an employer's legal requirement to provide a workplace free from recognized hazards.
Based on these recommendations and compliance requirements, an employer should strongly consider making remote working options available to as many workers as possible. Even if an employee is not generally allowed to work remotely due to particular job duties or the employer's industry (e.g., healthcare), employees with disabilities that put them at high risk for complications associated with COVID-19, or employees who may be pregnant, may request to work remotely as a reasonable accommodation to reduce chances of infection.
- Follow best practices when offering flexible working arrangements; and
- Consider alternating groups of employees' work hours by revising work schedules to reduce the potential for close contact and, therefore, keep the workplace safer.
If an organization has made the decision to shift to mostly remote work, then it may need to expand its remote network capacity. However, hiccups may arise as network connections are strained with the increased access.
In addition, employees should access corporate files in a secure manner when working from home. Access should be provided through a virtual private network (VPN).
Mobility often requires employees to have remote access to a company's intellectual property, unique processes, client information and other confidential business information that have allowed the business to grow and thrive.
- Take steps to protect confidential business information to ensure it is not used by others to the detriment of the business;
- Adopt or update a telecommuting policy and agreement to address equipment and supplies expectations, as well as the return of the employer's materials; and
- Consider a nondisclosure agreement with the remote worker in circumstances where the employee is privy to confidential business information or the employer's intellectual property.
A workplace policy should address:
- The process for making remote working requests;
- Equipment and supplies;
- Safety concerns;
- Wage and hour issues, particularly regarding nonexempt employees;
- The duration of arrangements.
During a pandemic or other public emergency, an employer may consider offering additional support, flexibility or pay to employees. For example, an employer may consider making extra payments to employees to help them transition to telecommuting. Consider offering a reimbursement to employees to upgrade their home internet connectivity up to a speed that is suitable to working from home.
These types of temporary, emergent measures should be communicated to employees as such, unless an employer anticipates making them available as permanent options.
By shifting to a remote working model during a pandemic, an organization will reduce its collective risk exposure within its facilities and employee populations. However, ongoing communications regarding business continuity concerns are vital during this time.
Supervisors and employees should be trained on where to find relevant information with respect to business continuity. An organization may include its emergency plans in employee handbooks, policy manuals and business plans.
An employer should have mechanisms in place that will enable employees to obtain the latest communications on the pandemic. Circumstances during the pandemic may continue to change, such as by a local government issuing a shelter in place order rendering a business as nonessential and, therefore, precipitating a closure or temporary ceasing of operations.
- Use an emergency communications policy to provide guidance on the communication channels available to employees, which may include remote access to the employer's network and access messaging on the status of an emergency (e.g., by downloading an application with the relevant information or by using a local telephone number with an updated recorded message); and
- Ensure employees' contact information is updated by providing employees with an Emergency Contact Form and implementing a Personal Data Changes Handbook Statement.
Support and Training
An employer should take steps to make each remote worker feel supported as a valued member of the greater team. This becomes more vital during a public health emergency.
In addition, an employer should support remote work by:
- Following best practices in terms of holding virtual meetings;
- Using and comparing online collaboration tools; and
- Recommending or adopting preferred applications for collaboration, communication and conferencing.
Think creatively about how to achieve business goals with remote workers. For example, focus on specific projects and output - a results-oriented approach - as opposed to a focus on the amount of hours worked.
Each employee should feel empowered to put in a full day's work but also have time for meals, opportunities to go outside, and meaningful breaks from projects. Frequent use of calendars, showing when everyone should be available for a conference call or when individuals prefer to be offline, will likely optimize a team's experience with remote working.
Any supervisors who are not used to managing a remote team should guard against making certain assumptions about workers, such as their level of technical proficiency or their likelihood to be more or less productive from home. These types of behaviors could affect overall morale and productivity.
- Train supervisors on the particular challenges that arise when managing a remote team.
Relaxed Work Rules
Encourage managers and supervisors to allow more flexibility with respect to work rules during a pandemic. Issues such as child care and accessibility to a reliable network connection may keep employees from being as productive as they would like during usual work hours. However, a focus on well-being and support, rather than process and consequences, may benefit both employer and employee during a challenging business climate.
Focus on building a trusting relationship with employees so that productivity goals are achieved.
If certain processes or rules did not work as well as expected, or encouraged bad habits to form among remote workers, then make a note and tweak policies or handbook statements accordingly when the emergency has passed.
- Brush up on general information about work rules; and
- Consider alternatives to discipline during a public health emergency, when many employee undergo stress and other mental health challenges during a time of personal and professional uncertainty.
Best practices in managing performance for remote workers need not be very different from those workers who report to a specific work location. For example, more frequent check-ins are a best practice for managing performance and have the added benefit of making the transition to remote work more successful for both parties.
However, at the outset of a remote working arrangement, an employer should provide as much information as possible to an employee regarding performance expectations and how those can be met while working remotely. In addition, a supervisor should anticipate certain questions from employees regarding changed or updated performance practices and how to report progress.
When gauging performance, a supervisor should:
- Rely on measurable, observable facts when managing an employee's performance against job responsibilities;
- Have meaningful discussions regarding areas of growth while avoiding sanitizing facts; and
- Avoid the use of attitudes or impressions.
An employer should also train supervisors to anticipate obstacles to meeting performance expectations while working remotely and to work with both the employee and the employer to meet these challenges.
In addition, it will become vital to develop a trusting relationship with employees, and to focus on furthering business goals through performance metrics.
Wage and Hour
Wage and hour requirements also may come into play with remote work.
Employers must maintain and preserve accurate records containing a variety of information. For nonexempt employees, this includes start and stop times, the time of day and day of the week on which the employee's workweek begins, the hours worked each workday and the total hours worked each workweek. Employees must be paid for all hours worked. Needless to say, this can be a challenge when employees work remotely.
In addition, many states require that employers provide nonexempt employees meal and rest breaks.
Finally, employers may not require employees who are covered by the FLSA to pay or reimburse them for additional costs employers may incur if employees work from home (such as internet access, computers, additional phone line, increased use of electricity, etc.) if doing so reduces the employee's earnings below the required minimum wage or overtime compensation or if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act.
- Comply with federal and state recordkeeping requirements;
- Check state meal and rest break requirements; and
- Review rules about deductions above the minimum wage.
Return to the Workplace
Those employees who have been working remotely for some time will have questions and concerns regarding expectations upon returning to the workplace during and post-pandemic.
In addition, many employees may have grown accustomed to working remotely and may be reluctant to return to their prior work location full-time.
- Be prepared to consider these requests for flexible working arrangements as organizations transition back to workplaces.
Employees may have concerns about the:
- Safety of the workplace;
- Practicalities of the commute to and from work; and
- Stress related to the period of quarantine, health concerns and school closures.
For these reasons, it is important to emphasize robust communications with employees during this time. Take time to explain safety measures and allow for concerns to be communicated. Ensure that employees are receiving standardized and consistent messaging from the organization. Many organizations have begun forums such as town hall meetings and coronavirus check-ins to keep employees in the loop with the latest, official information.
Train supervisors regarding any changes to policies or procedures. Ensure that these front-line managers have all the tools they need to answer their employees' questions and, most importantly, that they know when to escalate a concern.
Added Safety Measures
Review any additional safety measures or protocols that will be in place upon employees' return to work.
Ensure that employees are aware and that the organization will be acting consistent with the Americans with Disabilities Act (ADA) with respect to any screening practices (e.g., temperature screening) that are implemented. (These will be compliant if consistent with advice from the Centers for Disease Control and Prevention (CDC) and public health authorities for that type of workplace at that time.)
An employer may require employees to wear protective gear (e.g., masks and gloves) and observe infection control practices (e.g., regular hand washing and social distancing protocols). However, if an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves or modified face masks for interpreters), or a religious accommodation under Title VII (e.g., modified equipment due to religious garb), then the employer should engage in the interactive process with the employee.
Use caution when disciplining employees when returning to the office. A number of laws contain retaliation protections (most notably the Occupational Safety and Health (OSH) Act and its state counterparts). In addition, a number of states have added retaliation protections for employees who are seeking to follow the CDC's and state board of health recommendations.
Reductions in Force
If the organization went through a reduction in force (RIF) of certain employees while others were working remotely, the remaining workers may be returning to a different workplace - along with different or added duties or reassignments.
When an organization goes through a RIF, it is just as important to have a plan in place for working with those who will remain with the organization as it is for those who will be affected directly by job losses. A manager or HR professional working with the remaining employees must be able to understand and effectively lead through the complicated emotions these employees may be experiencing.
Business Expense Reimbursements
Does an employer have to reimburse employees for expenses they incur while working from home, such as an internet connection, a cell phone, computer equipment, printer toner and the like? What if employees are using their personal cell phones or home wi-fi to make business calls or connect to the company network; does an employer have to cover all or part of the monthly bill?
These are difficult questions without easy answers. Certain states explicitly require employers to reimburse business expenses. Conversely, some states allow employers to make deductions from employees' wages for the purchase of tools or equipment that are necessary for the job.
Employers should first consider federal rules, which will apply in states where there is not a more employee-friendly standard.
Under the Fair Labor Standards Act (FLSA), tools of the trade that are "incidental to carrying on the employer's business" are considered to be primarily for the employer's benefit or convenience. As a result, employers generally are prohibited from counting tools of the trade as part of an employee's wages, unlike other things like meals and lodging.
Work-from-home equipment that will be considered tools of the trade includes "telephones used for business purposes" and "necessary tools or uniforms used in the employee's work," according to the US Department of Labor's enforcement manual.
If an employer requires employees to provide their own tools of the trade to perform their jobs, there will be an FLSA violation in any workweek when the cost of the tools the employees purchased cuts into the minimum or overtime wages they are owed. However, employers may prorate deductions for the cost of tools of the trade over a period of paydays, as long as the prorated deductions do not reduce employees' wages below the required minimum wage or overtime compensation in any workweek, according to DOL guidance.
Additionally, most reimbursements for business expenses do not need to be included in the regular rate of pay when calculating overtime. However, only the actual or reasonably approximate amount of the expense may be excluded from the regular rate. If the amount paid as "reimbursement" is disproportionately large, the excess amount must be included in the regular rate.
Finally, employers should not forget to evaluate federal rules around the taxation of home office equipment.
Under California law, an employer must reimburse employees for all "necessary expenditures or losses" they incur in direct consequence of the discharge of their duties, or of their obedience to the employer's directions.
A key term here is necessary, which can help exclude items that are more for an employee's convenience, such as wireless headphones or a coffee maker. Examples of expenses for which employees may need to be reimbursed include:
- Use of personal cell phones for work-related calls, for which the reimbursement owed is a reasonable percentage of their cell phone bills; and
- Use of a personal computer, printer and home internet connection, for which the employer must pay a reasonable percentage of the cost, even if the employee does not incur an extra expense for the business use of the personal equipment.
Other States and Localities
Several other states and localities have laws and/or regulations that explicitly address the reimbursement of business expenses, including:
- Illinois: Illinois requires an employer to reimburse an employee for all "necessary expenditures or losses" incurred within the employee's scope of employment that are directly related to services performed for the employer. "Necessary expenditures" means all reasonable expenditures or losses required of the employee in the discharge of employment duties and that primarily benefit the employer. If an employee fails to comply with an employer's written expense reimbursement policy, the employee may not be entitled to reimbursement. Additionally, an employer is not responsible for losses due to an employee's own negligence, losses due to normal wear, or losses due to theft unless the theft was a result of the employer's negligence.
- Iowa: Iowa requires employers to reimburse employees for expenses authorized by the employer and incurred by the employee, either in advance of expenditure or no later than 30 days after the employee submits an expense claim. If the employer refuses to pay all or part of each claim, the employer must submit to the employee a written justification within 30 days after the employee submits an expense claim.
- Massachusetts: Massachusetts requires employers to reimburse employees for transportation expenses when employees who regularly work at a fixed location are required to report to a location other than their regular worksites and when they are required or directed to travel from one place to another after the beginning of or before the close of the work day.
- Montana: Montana requires employers to indemnify employees for all that they necessarily expend or lose as a direct consequence of discharging their duties or of obeying the employer's directions (even if the directions are unlawful, unless the employee at the time of obeying the directions believed them to be unlawful). However, employers are not bound to indemnify employees for losses suffered because of the ordinary risks of the business in which they are employed. Montana's Supreme Court has held that employees may not waive these protections.
- New Hampshire: New Hampshire requires employers to reimburse employees for expenses they incur in connection with their employment and at their employer's request (except expenses normally borne by employees as a precondition of employment, which are not paid for by wages, cash advance or other means) within 30 days of when the employee presents proof of payment.
- New Jersey: New Jersey requires employers that request or require applicants or employees to have medical tests as a condition or employment or continued employment to reimburse applicants or employees who pay for such tests.
- New York: New York requires employers that are party to an agreement to pay or provide "benefits or wage supplements" (which includes, but is not limited to, reimbursement for expenses) to pay employees within 30 days after payments are required to be made. Failure to do so is a misdemeanor punishable on first offense by a fine of $500 to $20,000 or imprisonment for up to one year.
- North Dakota: North Dakota requires employers to indemnify employees for all that they necessarily expend or lose in direct consequence of discharging their duties or of obeying the employer's directions (even if such directions were unlawful, unless the employee at the time of obeying the directions believed them to be unlawful). This obligation to indemnify does not include expenses incurred to purchase or rent tools of a trade or any other equipment that is also used by the employee outside the scope of employment. Employers are not bound to indemnify employees for losses suffered as a result of the ordinary risks of the business in which they are employed, or of the negligence of another person employed by the same employer in the same general business, unless the employer neglected to use ordinary care in selecting the culpable employee.
- Seattle, Washington: Seattle requires employers covered by its Wage Theft Ordinance to indemnify employees for all necessary expenditures or losses they incur directly by discharging their duties or by obeying the employer's directions (even if the directions are unlawful, unless the employee at the time of obeying the directions believed them to be unlawful).
- South Dakota: South Dakota requires employers to indemnify employees for all that they necessarily expend or lose in direct consequence of discharging their duties or of obeying the employer's directions (even if such directions were unlawful, unless the employee at the time of obeying the directions believed them to be unlawful). Employers are not bound to indemnify employees for losses suffered as a result of the ordinary risks of the business in which they are employed, or of the negligence of another person employed by the same employer in the same general business, unless the employer neglected to use ordinary care in selecting the culpable employee.
- Washington, D.C.: Washington, D.C., requires employers to pay the cost of purchasing and maintaining any tools required for performing the employer's business.
These are some of the laws and regulations that expressly address the reimbursement of business expenses. In addition, wage payment laws, minimum wage laws and even statutory or regulatory definitions may create an obligation to reimburse business expenses. Employers should consult with counsel if questions arise.
Effective July 16, 2020, Pennsylvania mandates telework, if possible, as a response to the coronavirus (COVID-19) pandemic.
If possible, employers are required to conduct operations remotely ( in whole or in part) through individual teleworking of their employees in the jurisdiction(s) in which the employers do business. If remote working is not possible, employees may conduct in-person business operations, provided that the businesses fully comply with all existing and applicable orders and guidance issued by the Governor, state the Department of Health and the Centers for Disease Control and Prevention.