Many state and local orders continue to require certain employees to work remotely or telecommute during the COVID-19 pandemic. And even where employees are beginning to return to the workplace, employers may face an increase in requests from employees to work remotely on an extended basis. With a likely uptick in its remote workforce, employers should consider whether to allow its employees to work remotely, and if so, how to best accomplish the task, including whether to implement a remote work policy and/or enter into individual remote work agreements with its remote employees during this pandemic and, perhaps, beyond.
The following FAQs discuss some of the questions that employers may encounter.
Question: What are some of the factors to consider when deciding whether to accept an employee’s request to work remotely?
Answer: Much depends on the job duties of the employee, but an employer should generally consider the following in determining whether to grant an employee’s remote work request:
- The suitability of the employee’s job for remote work, including the frequency of in-person interaction in the workplace and dependency on resources available only in the workplace.
- The employee’s past performance, including the ability to work independently, communicate effectively, establish priorities, manage distractions and meet deadlines.
- The employee’s working knowledge of use and maintenance of appropriate technology.
- The availability of equipment and appropriate telecommuting work environment.
- The employee’s ability to go into the workplace for meetings or other business needs as required.
Question: Does an employer need to reimburse a remote working employee for equipment and supplies used in connection with remote working?
Answer: Certain work-related expenses must be reimbursed by the employer in certain states. For example, in California, an employer must reimburse employees “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” (Calif. Lab. Code § 2802(a)). California case law further specifies that employers must pay a reasonable percentage of an employee’s personal cellphone and home internet bills when usage of such phone and internet are, in part, for business purposes.
Unless expense reimbursement is mandated by state law, an employer may decide whether to reimburse a remote working employee for equipment and supplies, but such decisions should be consistent for all such employees.
Question: Must an employer allow remote working based on an employee’s medical need?
Answer: An employer subject to state and/or federal disability laws (e.g., Americans with Disabilities Act) may have an obligation to engage in an interactive process with a disabled employee to determine whether a remote work arrangement is a reasonable accommodation that would allow the employee to effectively perform essential job duties, and whether there are any alternative forms of accommodation that would be as effective.
Question: How should an employer comply with wage and hour laws for non-exempt remote employees?
Answer: An employer should require non-exempt employees to accurately record and report all hours worked remotely in the same manner as hours worked on-site. In addition, meal and rest break laws apply equally to remote work arrangements. To reinforce compliance with these laws, employers should consider stating in a remote work policy and/or agreement that all company rules, policies, practices, and procedures and benefits guidelines remain applicable to employees while working remotely, including but not limited to policies requiring accurate recording of time and adherence to meal and rest breaks.
Question: What are the requirements for a remote employee’s home work space?
Answer: Remote employees should have a designated home work space that is maintained and kept free of safety hazards and appropriately furnished. When the remote work arrangement is voluntary (e.g., when working from home is not mandatory during a pandemic), employers may consider reserving the right to inspect an employee’s home work space. Employers should be aware that work-related injuries that occur in the designated home work space during working hours may be covered by workers’ compensation insurance, so proper safety must be emphasized.
Question: What restrictions can an employer set on use of company property (e.g. laptops) in a remote setting?
Answer: An employer should specify that company property must not be used by anyone who is not employed by the company and that all company property and information should be kept secure. If company property is lost or damaged, an employer should make employees aware of the process for reporting such issues. An employer should also communicate to remote employees that there should be no expectation of privacy regarding the use of the company’s computer or other electronic systems.
Question: What are some ways in which an employer can evaluate whether a remote worker is completing required work?
Answer: An employer should provide clear communication to a remote worker of the required work duties and responsibilities and performance expectations in place during a remote work arrangement but may want to consider whether to require a remote employee to submit additional work assignment status reports or submit survey forms. An additional consideration is whether to monitor a remote worker’s work time via software on laptops. Best practice would be to provide employees with advance notice of such software, especially given some states (e.g., Connecticut and Delaware) require employers to provide advance written notice to all employees who may be monitored.
Question: How can an employer ensure that a remote worker’s personal responsibilities do not interfere with fulfilling job responsibilities?
Answer: An employer should clarify that remote working is not an alternative to dependent care or meant to accommodate personal or other business responsibilities. However, employers may want to include an exception to this section to apply during the COVID-19 pandemic given many working parents are required to juggle child care due to school and child care closures.
Question: Should an employer adopt a remote work policy or enter into individual remote work agreements with its remote employees?
Answer: Whether an employer anticipates all or some of its employees will work remotely on a temporary or more permanent basis, a remote work policy or agreement provides clear guidance to employees on the process, expectations and obligations of a remote work arrangement. A remote work policy or agreement also provides more consistency with handling employees’ requests for a remote work arrangement. Providing remote work arrangements can benefit both employers and employees by allowing for greater flexibility that can lead to higher productivity and overall job satisfaction.
Question: How does an employer decide whether to adopt a policy, an agreement or both?
Answer: A remote work policy communicates the guidelines and processes for remote working to all employees. A remote work agreement may allow for customization for an individual employee along with more general guidelines. As a general rule, because a policy is not a contract, an employer may unilaterally modify a policy, but modifying an agreement requires the consent of both the employer and the employee. If an employer wants flexibility to unilaterally modify the arrangement at any time, it could issue a policy, whereas if the employer wants an individualized arrangement for each employee, it could enter into an agreement. Best practice is to either have a policy with an acknowledgement signed by the employee, or an agreement containing general guidelines and the employee’s specific details of the remote work arrangement along with the employee signature.
Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.