Question: Most of our employees are now working from home as a result of the COVID-19 pandemic. Do we need a remote work policy? What types of risks and procedures do we need to consider?
Answer: Yes. Even if you intend to allow only remote working (“telework”) for the duration of the pandemic, it is still important to have clear policies and procedures to set expectations, for the protection of the Company’s information and other property, and to ensure compliance with workplace laws while employees are working in unsupervised workspaces.
Here are some tips to consider:
- At this time, you do not have to develop a full-blown standing telework policy that covers every possible scenario and future requests to work remotely. You can adopt a temporary emergency policy that contains only the policies and procedures you need right now, and consider a standing policy later.
- Make clear which categories of employees are eligible to telework, how the Company will decide eligibility, and whether telework will be granted on a full-time, part-time or scheduled basis.
- Address compensation, work hours and work expectations. Typically, a teleworking employee will be expected to work, without unreasonable interruptions, for the duration of the employee’s scheduled work time, with the same start and stop times, and the same length and frequency of breaks and rest periods that the employee would be allotted while working onsite, and to achieve the same level of production during their telework time as they would working onsite.
- Emphasize communication and collaboration. Teleworking employees should make an extra effort to communicate and collaborate with team members and managers and to demonstrate availability and responsiveness to co-workers and clients. During scheduled work time, teleworking employees must be available by phone and email equivalent to working onsite, and most will need to have regular access to Company systems via the internet as needed to complete work functions.
- Teleworking employees should designate a specific telework workspace approved by management. Because teleworking employees typically are covered by the Company’s worker’s compensation insurance while teleworking, the employee should be required to commit to maintain the workspace in a clean and safe condition at all times, free from any hazards, hazardous materials, distracting sounds, and any other dangers or disruptions to the employee’s ability to work continuously during scheduled work time. The employee also should be required to ensure that the workspace is a secure location for the Company’s equipment, business-related information and other property.
- Be sure to inform teleworking employees that they must comply with all applicable Company policies and procedures, just as if they were working on site. This includes recording work time, requesting time off, use of impairing substances, conduct policies, information security policies and other policies and procedures.
- Dependent care may be an issue for teleworking employees during the COVID-19 pandemic, because schools and daycares are closed. While some companies may be able to offer flexibility for some or all positions in this regard given the current circumstances, it is appropriate if business needs require it, to mandate that teleworking employees not care for dependents while working. In that case, if a teleworking employee needs to provide dependent care during regularly scheduled telework hours, the employee must request PTO or leave in the same manner as if the employee were working onsite.
- Be sure that teleworkers are equipped to work remotely.
- Be clear about expenses upfront. As a practical matter, if you require an employee to work remotely who is not normally set up to do so, you should consider whether you will need to reimburse the employee for any additional expenses they incur for phone, internet, or other expenses (beyond what the employee otherwise would have paid) that are required to enable the employee to telework at the Company’s request.
- Remember that the Fair Labor Standards Act (FLSA) requires that any costs to non-exempt employees not reduce their pay below minimum wage and required overtime.
- If you allow teleworking employees to take supplies from onsite, you can require approval each time supplies are removed from onsite, and require that any unused supplies be returned.
- Make sure that your software licenses allow for remote usage and acquire additional licenses if needed.
- Include clear limitations of liability regarding non-work-related injuries in or about the workspace. In the case of long term telework, it is also a good idea to disclaim responsibility for any additional taxes, penalties, permits or regulatory requirements associated with the employee working remotely, and to recommend that the employee seek their own professional advice regarding such matters.
- And, as with any stand-alone policy, it is a good idea to have employees sign an acknowledgement agreeing to abide by the telework policy, as a condition of their participation in the Company’s telework program.
Because the COVID-19 pandemic is a fluid situation, and because risks can be presented in a myriad of ways, it is important to analyze each situation on a case-by-case basis, to determine the appropriate course of action.
If you need help with your planning or working through scenarios that present themselves in your workplace, we are here to help. Please contact Morningstar Law Group Partner, Amie Flowers Carmack, for assistance: acarmack@morningstarlawgroup.com or 919.590.0394.
