With an increasing number of businesses transitioning their workforces or significant portions of them to remote work in response to the current COVID-19 public health situation, employers are well-served to consider key legal issues relevant to remote workers. While it may not be practical for every employer or every employee to shift to remote work, those who have do so (whether voluntarily or in response to a Shelter-in-Place or Stay-at-Home order from state and local governments) must not overlook employment-related laws, rules, and regulations, as well as existing company policies and procedures.

Employers able to continue operations with employees working from home should be mindful of the issues listed below when implementing remote work plans on short notice:

• Non-Discriminatory Implementation
  • If an employer is unable to offer remote work arrangements to every employee, it must be prepared to offer legitimate, nondiscriminatory explanations for why some employees are permitted to work from home and not others. Employers must also apply their stated reasoning uniformly to all employees.
  • If employees are permitted or required to work from home due to COVID-19-related challenges (and are not otherwise remote workers), the employer should make the temporary nature of and the extraordinary reasons for the remote work arrangement clear, via policy, agreement, internal communications or otherwise. An employer may otherwise unintentionally establish precedent for the offering of temporary telework arrangements as reasonable accommodation to persons with disabilities when certain essential functions cannot be adequately performed remotely in any normal situation.

• Wage and Hour Issues
  • Fair Labor Standards Act (FLSA) rules apply to remote work. Nonexempt remote-working employees must be paid for all time worked, including overtime, just as if they were working from their normal workplace.
  • Employers must require and ensure that their non-exempt staff tracks all working hours, whether by electronic means or otherwise. Keeping tabs on non-exempt employees' work activity while working remotely can be difficult but it is essential to avoiding obligations to pay overtime and/or penalties for failing to do so. Staff must be advised by policy and/or agreement of expected work hours, the requirement to track time worked, and any company rules regarding prior approval of overtime.
  • Keep in mind that employers may restrict employees from working overtime without prior approval but must still pay any overtime actually worked. Employers should be prepared to discipline employees for violating any policies related to overtime (but still must pay any earned overtime wages).
• Home-Based Office Safety
  • The Occupational Safety and Health Act (OSHA) and similar state laws obligate employers to provide a workplace free from recognized hazards likely to cause harm. This applies even when an employee is working from home.
  • Employees may be provided with a remote work "office" safety checklist, asking them to review their home work area for any potential hazards.
  • Employers' policies regarding on-the-job injuries and reporting them are still applicable. Remote-working employees should be advised to review and abide by those policies.
• Confidentiality, Privacy, and Security
  • Employers should work with their IT professionals to ensure that remote access does not create any data security issues and that remote workers are provided with appropriate encryption, passwords, network firewalls, and secure connections to the company's data.
  • Depending on an employer's business, it may wish to restrict remote capabilities to print or to download certain documents from company servers to personal devices.
  • Employees should be reminded of the security risks of using public WiFi. Employers may consider temporary distribution of company-owned hardware such as laptops and wireless internet hotspots where practicable.
  • Employers may generally continue to monitor work email when employees are working remotely, where there is a valid business purpose for doing so and employees do not have a reasonable expectation of privacy in using company email. Employers should review their existing policies in this regard.

Employers should consider drafting a Temporary Remote Work Policy and/or Agreement, setting forth the key issues raised above. The document should spell out which employee categories are eligible to work remotely (if not all); availability expectations; timekeeping requirements; whether personal or work equipment will be utilized; what technological tools for remote work/access will be provided; security and confidentiality obligations; health and safety responsibilities; and the continued applicability of other company policies and procedures.

Martin Pringle's employment law attorneys are available for any questions you may have about transitioning and managing a temporary remote workforce in response to the current public health situation. Feel free to reach out via email or phone at any time.