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Date:
03/13/2020
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Remote Work Issues to Consider in Light of COVID-19

Many employers have elected to implement a remote work policy in light of the COVID-19 coronavirus outbreak.  If you are one of them, you should consider the following as you transition your workforce to a remote working environment.

Preliminary Steps  

The first step prior to implementation is ensuring that you have sufficient technological infrastructure and capabilities. You should assess what types of equipment (e.g., desktop computers, laptops, phones, printers, and office supplies) your employees will need to work remotely, and ensure that there is sufficient inventory and that employees can gain access to the equipment. You should also confirm that you have data security measures in place and brief employees on best practices for security and protection of data. You should refer employees to your organization’s technology policy regarding the safeguarding of data. If none exist, you should strongly consider creating and implementing one.  One of the more important aspects of any policy is restrictions on where employees may work remotely. For example, some employers prohibit employees from working remotely on public wifi networks due to security concerns. Whether these or other policies are right for your organization depends on the nature of your work and data, security measures you have in place, and your risk tolerance.

Beyond technology issues, you should prepare a checklist of necessary work items and materials that employees will need to perform their jobs remotely. You should also clearly communicate to employees which items may be removed from the workplace and taken home and which should remain.   

Remote Work Policy

You should also, of course, make sure you have in place a written remote work policy. Even if you have one, you should consider updating your existing policy to tailor it to this unique situation or creating a new policy specifically for it. You may want to address the following important issues in the policy: exemptions for workers who cannot work remotely, timekeeping procedures, whether remote workers are expected to be available during all usual work hours, whether employees are prohibited from meeting with other employees/clients/vendors in person, a protocol for scheduling remote meetings, a clear policy regarding where remote work can and cannot be performed (e.g., on public wifi networks), and which devices employees can use to perform work.  A policy tailored to the COVID-19 outbreak should also make clear that it is temporary and that the company will provide status updates on a weekly basis.   

 

You should also make sure that your telework policy is neutral in that it does not single out employees to either telework or continue reporting to the workplace on the basis of any protected category or characteristic, including age, familial status, or disability.  

Paying Employees

All employees working remotely must be paid their regular wages since they are working.  For employees who cannot work remotely but are told to stay home, payment depends on the classification of the employee.  

Non-exempt employees

Generally, non-exempt employees who cannot work from home but are told not to work due to concerns about potential exposure do not need to be compensated. Such employees are paid only for hours worked. However, employees who are directed to stay home and cannot work remotely should be allowed to use any available paid time off.  Some employees may also be eligible for unemployment benefits

Exempt employees

Exempt employees are paid on a salary basis, regardless of the number of hours worked.  With limited exceptions, exempt employees must receive their full salary for any week in which they work, regardless of the number of days or hours worked. You need not, however, pay an exempt employee for any workweek in which no work is performed. As with non-exempt employees, employers would be entitled to deduct accrued paid time for absences that qualify under a bona fide vacation, paid time off, or sick leave policy.

Keep in mind that the extent to which you can deduct paid time off for forced absences may be limited by an employment contract or collective bargaining agreement.

Your organization should also consider the public relations fallout of a decision not to pay employees who are told to stay home from work.

Reimbursement of Expenses

Employees working remotely may incur costs associated with working from home. Examples include costs associated with phone and computer usage, the cost of office supplies such as paper, and electricity costs. Although under the FLSA employers are required only to reimburse for costs that reduce the employee’s earnings below the required minimum or overtime wage, states have different requirements. In California, for example, employers must reimburse employees for all necessary expenditures or losses incurred as a “direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer…” These laws underscore the importance of having a clear remote work policy in place that addresses the manner in which employees should perform their jobs while working from home.

Whether employers are required or permitted to work remotely may affect whether the employer must reimburse employees for their incurred expenses.

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