COVID-19 changed the face of the employment environment for the foreseeable future and beyond. With the proliferation of remote work arrangements, it is essential for employers to define their policies, requirements, and eligibility to engage in remote work programs in order to streamline the process, establish expectations, and avoid legal entanglements. A well-written employee handbook can do just that. Employers should consider the why, who, where, when, what, and how of their telework policies when incorporating them into the handbook.
Proven advantages of telework for employers include reduced costs for workspace, utilities, and other overhead; lower absenteeism; elimination of weather-based closures; increased productivity, morale, and retention; a competitive edge in hiring from larger geographic areas; possible accommodations for certain workers; and promoting employees’ work-life balance.
Governments also promote telework to reduce traffic congestion and benefit the environment. Several courts and the Equal Employment Opportunity Commission (EEOC) have suggested that employers must consider allowing telework as an accommodation under the Americans with Disabilities Act (ADA). In addition, the EEOC has also indicated that long-term COVID-19 may qualify as a disability under the ADA.
Now that we know why the company should consider remote work arrangements, the employee handbook needs to address which employees may qualify for telework. Why do some roles qualify, while others must be performed on-site? Do collective bargaining agreements come into play? Is there a limit on the number of employees who may be considered? Is the program limited to exempt employees? Is a trial period required? The handbook should also detail how an employee may make a request for telework.
We know the “where” is a remote location, and, in most cases, from home. But there’s more to it than that. The Occupational Safety and Health Administration (OSHA) will not hold companies responsible for the safety of their telecommuters’ home offices. However, because the employer’s workers’ compensation carrier may be responsible for job-related injuries, the employer may want to publicize its right to inspect the home office for safety standards in its employee handbook.
Remote workers may not only work from home but may also “hotel” or work from other locations. The policy should address any such requirements because remote workers may inadvertently establish a physical presence in a state or locality, giving rise to registration and tax issues. Further, some states have reciprocity agreements so that employees who telecommute from a state other than the one where the employer is located do not face double taxation on their incomes; other states do not. Employers should seek guidance from their state tax department or a local attorney before addressing such issues in general or in the handbook.
In addition, telework can blur lines physically for an employee at home. Drugs and alcohol may be present in the home, but the handbook’s policy should clarify testing policies and that employees are expected not to be under the influence while performing their work.
The telework policy in an employee handbook should address when employees may work, including required core hours. It should address when employees must spend time in the office and rules for hours reporting under the Fair Labor Standards Act (FLSA). State laws may require rest breaks of specific duration, and the policy should address how non-exempt employees must document their breaks.
A handbook’s telework policy must address the work that must be performed and the employer’s expectations and performance standards. The policy should make clear that all rules that apply to behavior in the workplace also apply to teleworkers. The policy should establish a clear communications process, including for “voice” commuting and phone usage. Further, the policy should clarify that remote working is not an alternative to dependent care or meant to accommodate personal or other business responsibilities.
An employee handbook telework policy must establish rules for equipment usage, technical support, data, and electronic security, information technology, and expenses. Some states, like California, require reimbursement for certain expenses of remote employees, which may include a percentage of reimbursement for use of personal devices for business purposes.
Finally, the remote work policy may require a written commitment or contract to ensure that the employee understands the policies and agrees to comply with them. By assuring observance of well-defined standards for remote work, employers can ensure a smooth transition and effective management in the future of the workplace.