Legal Issues When Working From Home

This article will provide a legal checklist for employers and employees in a remote working environment. We will cover the following topics:

• Maintaining nondiscriminatory work-from-home policies
• How to monitor employee productivity and communications
• Proper timekeeping
• Is overtime still applicable for remote work?
• Enforcing breaks
• Are employers required to provide equipment for remote workers?
• Sick pay
• OSHA requirements when working from home
• Maintaining disability accommodations
• Work-from-home versus remote work

COVID-19 has dramatically altered the workplace landscape, forcing employers to reevaluate their work-from-home and remote work policies. While some employers have given their employees the option to return to the office, many more still require their employees to work from home, a shift that may become permanent. Businesses should be aware that even though their employees are working from the comfort of their homes, workplace policies still apply. Below is a series of topics that employers and employees should consider when operating in a work-from-home environment.

Maintaining Nondiscriminatory Work-From-Home Polices

• Compile a list of legitimate, nondiscriminatory reasons that would preclude an employee from working-from-home.
• Ensure that any work-from-home, remote work, and onsite work policies, are administered in a nondiscriminatory manner. Update existing policies to include Covid-19 specific language.
• Make clear in any new or existing work-from-home and remote work policies that the unique challenges created by Covid-19 are the sole reasons that employees not usually allowed to work from home have the option to work from home or are required to work from home. Make sure language in any new or existing policy describes one or more return to work scenarios.

How to Monitor Employee Productivity and Communications

• When considering updating monitoring policies to reflect work-from-home and remote work environment, make sure the changes are consistent with the company's current policies and don't attempt to shoehorn in new policies that take advantage of the situation.
• If employees continue to use the company's email system or a new system is implemented for work-from-home employees, those employees should reasonably expect that their communication is monitored.
• Employees should be made aware of any changes in communication and productivity monitoring.
• Employers can require that both exempt and nonexempt employees record their working time when working-from-home.
• Employees not completing their required working hours, failing to maintain contractually agreed upon billable hours, or generally falling behind on productivity may still be subject to standard disciplinary intervention.
• Employers should understand that employees may face challenges when working from home, such as not having an adequate workspace or poor separation from distractions such as other family members.
• Employers should familiarize themselves with state and federal law regarding paid and unpaid leave for employees who miss work due to a family member's school closure or sickness. Click here for more information on paid and unpaid leave due to Covid-19 issues.

Proper Timekeeping

• If an employer fails to provide its employees with a specific system for recording remote work time, then the employer must accept the method the employee provides.
• Employers without a standardized timekeeping process should strongly consider implementing an intrasystem or cloud-based timekeeping program.

Is Overtime Still Applicable For Remote Work?

• Employers can restrict at-home employees from working overtime, but any overtime worked by nonexempt employees must be compensated, regardless of the time of day.

Enforcing Breaks

• State law regarding meal and rest breaks still applies to work-from-home and remote work employees. Employers should continue to enforce state-mandated meal and rest break requirements for nonexempt employees through a timekeeping system.

Are Employers Required To Provide Equipment For Remote Workers?

• If an employee requires specific equipment to adequately complete their work duties, such as a computer and cell-phone, the employer should make a reasonable attempt at providing those resources. If providing the necessary equipment is impossible, the employer should evaluate whether the equipment is essential. If it is a logistical issue, the employer should reimburse the employee for the necessary equipment.
• Employers should review the law in their state regarding the reimbursement of work-from-home employees.

Sick Pay

• Employers should evaluate and bring up to date their current sick pay policies. For more information on sick pay, paid leave, and unpaid leave during Covid-19, click here.

OSHA Requirements When Working From Home

• Employers are still obligated to follow standard OSHA workplace requirements for work-from-home employees. Employers can't force their way into an employee's home to evaluate their workspace, but employers should encourage their employees to assess their workspace.

Work-From-Home Versus Remote Work

• Employers should be clear when describing the guidelines of their work-from-home policy. This includes detailing the difference between working from home and working remotely and the right to prohibit employees from working remotely in a high-risk area.
• Employers can make reasonable requests in response to a health crisis like Covid-19. While an employer can't control what an employee does off the clock, they can prohibit the employee from entering the workplace or require that the employee quarantine after visiting a high-risk area.
• If an employee who must work onsite visits a high-risk area, the employer can require quarantine without pay. 

The legal guidelines surrounding work-from-home situations continue to evolve with the pandemic. Be sure to keep up to date with any federal or state level changes that may affect your business. If you have any questions, give us a call at (630) 324-6666 or contact us online to learn more.