Business

Six legal things to think about when it comes to working remotely and COVID-19

Wilford Stone, Lynch Dallas
Wilford Stone, Lynch Dallas

Workplace practices are shifting on a daily basis due to the coronavirus. Several weeks ago, telecommuting was a growing but limited part of the workforce. Many employers resisted the remote work model for fears that it would reduce collaboration and efficiency.

However, now that the coronavirus has reached pandemic status and health authorities across the globe are encouraging social distancing, remote work suddenly has become the status quo.

Employers who once asked, “Is there a reason to do this online?” are now asking, “Is there a reason to do this in person?”

Will remote work remain the rule or the exception after this crisis settles down? We now know that touching things and being with other people in an enclosed space within six feet can result in spreading the virus exponentially.

And remote work has presented an opportunity for the workplace, including better and more sophisticated use of technology. Employees can communicate more frequently with others that are located physically farther away, both of whom may feel safer with the distance.

As your office adapts to this new telecommuting culture, here are some employment law considerations to bear in mind:

1. Productivity and performance — Employees who have performance problems, those who require close supervision and those who cannot create a home working space that is safe, secure and free from distractions are not ideal candidates for telecommuting.

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To mitigate these concerns, all telecommuting employees should be required to sign a remote-work agreement reflecting your company’s telecommuting policy. The agreement and policy should reflect both your company’s expectations for employees’ productivity and availability while working remotely.

The agreement should further state it does not alter the employment at-will status and should cover topics such as when the employee is expected physically to be working; when the employee is expected to be at the home work site; the duties and assignments to be performed; how overtime at the home work site should be requested and approved.

In addition, your policy and agreement also should clarify what costs will be reimbursed to the telecommuting employee, such as a printer, paper, etc. If you are reimbursing for using the employee’s data plan, outline under what terms that happens.

Finally, there should be a general clause reserving the employer’s right to pull the employee back into the office if necessary.

2. Company property — If your telecommuting employees are using company-issued computers, smartphones or tablets, you should ask them sign to a document acknowledging that they have received the equipment and will take appropriate action to prevent damage or theft.

You also should ask the employee to authorize deductions from wages for any willful or intentional loss or damages, in accordance with Iowa Code Chapter 91A.

Plus, you should obtain the employee’s consent for your continued access the equipment, which may in some situations require access to the employee’s home workspace.

Each of these items can be included in the employees remote work agreement. In addition, be sure to enforce a clear “acceptable use” policy for employees using company-issued technology at home.

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It is easy for employees to blur the lines of what is work related and personal use when using company equipment outside the office.

3. Security — If your telecommuting employee is taking home sensitive or proprietary documents or electronic data, and working from a wireless internet connection, security issues may arise.

Ask your IT department to confirm the telecommuter is equipped to access company data appropriately and securely, either from a secure connection or through a VPN.

You also should direct your telecommuting employees to change passwords regularly and to store hard-copy confidential information in a secure place away from children, pets, spouses and roommates.

4. Workers’ compensation and OSHA — What happens if your telecommuter slips and injures herself on work-related papers at home? Employers are responsible for a safe working environment for their employees regardless of whether their employees work from home or the office.

To limit safety issues, establish the telecommuting employee’s work time and work environment and require that person to designate a specific area at home to serve as an office and to take lunch and rest breaks at designated times.

Likewise, although OSHA has indicated it will not conduct routine investigations of home worksites, employers may need to comply with OSHA regulations on recording work-related injuries and comply with safety and ergonomics policies with respect to employees’ home offices.

5. Payroll records, leave and compensation — The Fair Labor Standards Act requires employers to pay certain non-exempt employees for all hours worked and to keep accurate information regarding hours worked.

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The FLSA explicitly applies this rule “to work performed away from the premises or the job site, or even at home,” and requires employers to count the time as hours worked if “the employer knows or has reason to believe that the work is being performed.”

Likewise, the FLSA requires employers to compensate those employees at or above the federal minimum wage for all hours worked. It also requires employers to pay those employees overtime for all hours worked more than 40 in a given workweek.

The federal rules on overtime, waiting time, on-call time, and rest and meal breaks apply to qualifying telecommuters as much as they do to employees in the workplace. Therefore, employers with telecommuters should establish some mechanism to track those hours and to ensure their accuracy in the absence of a supervisor.

At a minimum, your employee’s remote work agreement should stipulate the number of hours the employee is expected to work each day or week and how those hours are to be recorded.

6. New Legislation — The new Families First Coronavirus Response Act and other anticipated federal legislation impose additional obligations for certain employers regarding use of sick time and FMLA leave for people with coronavirus-related absences.

The Department of Labor and employment lawyers across the country are working to interpret these new laws and advise their clients on immediate compliance. Guidance regarding these new laws already is circulating online.

You also should seek the assistance of corporate counsel or your organization’s employment lawyer regarding new rules that may apply to your employees.

Remote work hopefully will prove a powerful tool for maintaining your company’s operations during this unprecedented public health crisis.

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While it is important to enforce clear and proactive employment policies during this transition, I also recommend that employers maintain trust that their telecommuting employees are doing the right thing and not misusing work time while away from the office.

Discuss the issues listed above with the telecommuting worker in a friendly, non-adversarial tone while expressing confidence, and emphasize that everyone will get through this ordeal together.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.

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