COVID-19 has indelibly changed the way we work. For one thing, it has dramatically increased the number of employees who are now working from home. And we may find that, even after the pandemic eventually subsides, some employees may continue to work remotely, at least part time.
Flexible work arrangements can benefit both employees and employers, but they also are fraught with potential pitfalls. HR departments should take the opportunity now to either revise existing remote workplace policies or develop new ones that address the challenges and potential pitfalls of working from home.
As head of the employment practice at a law firm, these are a few of the key areas of concern I see most prominently today.
Deciding who gets to work from home
Among the many uncertainties facing employers is whether they even have to allow their employees the opportunity to work remotely. The answer depends on whether the businesses are considered “essential” under the Colorado Amended Public Health Order.
Employers of such businesses deemed essential can still require that employees show up for work as long as they are taking appropriate measures to ensure their workplaces are in compliance with any physical distancing requirements and the businesses are “free from recognized hazards that are causing or likely to cause death or serious harm to employees,” according to the U.S. Department of Labor.
For employers of businesses not deemed essential but subject to shelter-in-place orders, the requirements are different. Although they may not be able to require employees to physically report to work, employers still can require that certain employees telework, provided they have the tools and equipment needed to perform the job.
If an employee is unable to work or telework for certain coronavirus-related reasons, including that the person has been advised to self-quarantine or is caring for a child whose school is closed, employers are required to provide them 80 hours of paid leave. It’s capped at $511 per week or $200 per week depending on the reason for the leave. The cost of providing such paid leave is fully reimbursable through an immediate payroll tax credit.
Monitoring remote employeesFor organizations with employees working at home, one of the foremost concerns might be monitoring the amount of work they’re receiving. Certainly, employers can and should implement timekeeping policies for nonexempt employees and require that they accurately record all time worked.
Employers also can establish a set schedule of work time that includes breaks and meal periods. Although employers shouldn’t try to require cameras or other monitoring devices in an employee’s home, they certainly can require levels of productivity or production metrics. And, they can coach, counsel, discipline or terminate employees who do not meet productivity requirements.
Also, some employers may be able to monitor the amount of time employees spend working through time-tracking software programs that include digital clock-punching features, such as Hubstaff or TSheets.
Reimbursing remote employee expenses
An employer’s obligation to reimburse employee expenses often is unclear in the best of circumstances while in the office. However, when employees are required to work from home, the issue becomes hazier. For example, employers might wonder about the need to pay for the homebound employees’ internet or phone service, even though that’s typically something employees already have and pay for.
Like so many other issues affecting employees working at home, answers to these and other questions depend on a host of factors. For example, most states, including Colorado, do not have specific laws requiring employers to reimburse employees’ expenses. However, some states, such as California and Montana, do have such laws and require that employers to reimburse employees for certain expenses.
Employers should review their expense-reimbursement policies and revise them as needed in light of what’s happening with COVID-19. For some employees, the business expenses required in order to effectively work remotely, if not reimbursed, may cause a significant decrease in overall compensation. Of course, employers can never require employees to bear their business expenses to such a degree that it would reduce their overall pay below minimum wage.Providing remote workers’ comp
It’s also important for employers to understand that remote workers are covered by workers’ compensation. Employees can claim workers compensation for injuries that arise out of and in the course of employment regardless of where the injury occurs.
Generally, an employer’s lack of control over an employee’s work-from-home environment is not a defense. Employers can mitigate the risks of a workers’ comp claim arising out of a remote workplace by implementing a remote-work policy containing guidelines and requirements for working from home.
Developing remote work policies
When it comes to policies for working at home, this may be new territory for some companies. But with untold numbers working from home now out of necessity, it should be clear that a good remote work policy is crucial for any company trying to exist and compete in challenging times like these. Even companies that have such policies already may need to revise them to address the enormous increase in employees working from home.
An effective remote work policy should address issues including eligibility, equipment, expenses, safety, security, work hours and communication. Additionally, employers also may want to require that employees sign a remote work agreement so that expectations are clearly understood and agreed to by all.
One day, hopefully soon, more workers will return to offices, factories, restaurants and a thousand other places they filled just a few short months ago. But many workers won’t — and will, instead, remain working from home. To grapple with this new future reality, HR leaders should begin preparing now.
