17 Apr

Employer Guidance: Considerations for a Remote Workforce During the COVID-19 Pandemic

by

Now that “stay at home” orders are in place in most states, and the federal and many state governments have recommended that employers permit or require employees to work from home whenever possible in response to the COVID-19 pandemic, working from home has become the new temporary norm for many employees.

Working remotely during a pandemic can be stressful for both employers, which have a need to continue operations, as well as for employees, who may be adjusting to many new factors including: childcare responsibilities; distractions at home; a lack of separation between home and work; and feelings of isolation and anxiety about job security. 

This article gives employers an overview of issues to consider regarding remote workers and provides practical guidance and tips for managing remote workers in a way that is likely to increase employee satisfaction, minimize legal issues and maximize productivity during this unprecedented time. 

COVID-19 Remote Worker Policy

To promote clear understanding regarding employers’ expectations, enhance the likelihood of legal compliance, and give employees some clarity, we recommend implementing a COVID-19 Remote Worker Policy. The policy should state the employer’s expectations for employees while they are working from home, as well as the terms and conditions of this temporary remote working arrangement. (Employers who have Remote Worker Policies in place should review them to determine whether adjustments need to be made as a result of the COVID-19 pandemic.)

In drafting a COVID-19 Remote Worker Policy, employers should balance the need for productivity with the need for flexibility where possible. The policy should cover the following topics, which are further outlined in this article.

  • Eligibility and Duration of Policy
  • Statement that “At Will” and All Other Employer Policies Remain in Place
  • Maintaining a Respectful Workplace – Harassment, Discrimination and Retaliation Policies and Code of Conduct Still in Effect
  • Obligation to Post Required Notices/Posters in Conspicuous Place
    • Compensation/Work Hours/Productivity Measures
    • Equipment
    • Expense Reimbursement
    • Cybersecurity, Privacy and Confidentiality Expectations and Privacy
    • Safe Workplace
    • Employee Liability for Tax and Insurance Consequences
    • Employer Indemnification
    • Employee Acknowledgement

Eligibility and Duration of Policy

Employers should define whom the policy covers (some workers may still be required to be at the worksite) and the anticipated duration (e.g., as long as necessary to address the COVID-19 pandemic). In addition, the policy should state that employers have the right to refuse to provide remote work to any employee and to discontinue a remote work arrangement at any time. In cases where employers allow some employees to work from home and not others, to avoid claims of discrimination, employers should have a solid business reason to support decisions regarding which employees are permitted to work remotely.  

Employers should remind employees that remote work is a temporary measure in response to the safety threat posed by the pandemic and that employees are being permitted to work from home who would not otherwise be permitted to do so in the ordinary course of business. Policy statements that remote work is not a permanent replacement for working at the workplace and that remote work may not be a reasonable accommodation under other circumstances will help avoid claims that an employee should be permitted to telecommute permanently. 

“At Will” and Other Employer Policies Remain in Place

Employers should reiterate that employment remains “at will” and that all other employer policies remain in place, except as otherwise provided in the Remote Work Policy. Remote Worker Policies should specifically address employees’ obligations to comply with specific policies as discussed in this article. 

Maintaining a Respectful Workplace – Harassment, Discrimination and Retaliation Policies and Code of Conduct Still in Effect

Remote workers should be reminded that that they must comply with the employers’ Harassment, Discrimination, and Retaliation Prevention policies and any Code of Conduct policy. Compliance means maintaining a respectful remote workplace to the extent their remote workplaces are visible to co-workers (e.g., through video meetings and/or captured through telephones or microphones). Employees should have an awareness of what can be seen (e.g., t-shirts, posters, mugs with inappropriate images) and heard (e.g., profanity or inappropriate comments) in their surroundings. Of course, employees must also communicate respectfully in all work-related communications via email, text and/or instant messaging.

Employers should continue to monitor and enforce these policies and investigate any complaints promptly, thoroughly and impartially.   

Obligation to Post Required Notices/Posters in Conspicuous Place

Generally, the laws require that federal/state required posters and/or notices be provided and/or posted in a conspicuous workplace location where employees will see them. Employers have these posting and notice obligations in remote workplaces as well. If applicable law authorizes the electronic distribution of posters, notices and/or pamphlets, employers can email them to employees working remotely. For example, employers may satisfy the Families First Coronavirus Response Act (FFCRA) notice requirement by distributing the FFCRA notice to employees via email or posting the notice on an employee information website.

If electronic mailings are not expressly authorized, which is often the case, the cautious approach would be for employers to mail hard copies (reduced to letter size) of the posters, notices and/or pamphlets to employees, with delivery confirmation and instructions to post the posters and/or notices in the employees’ remote work locations as required.

Compensation/Work Hours/Productivity Measures

A remote work timekeeping policy (or individual written communication to employees or employee groups) should include several items:

  • Expectations Regarding Hours of Work
    • Depending on the employee’s job, it may be appropriate to set a schedule to ensure employees’ availability during certain work hours. This can also help avoid overtime claims that can result from unstructured remote work and can assure nonexempt workers they are not expected to be on call at all times. Nonexempt employees should log all hours worked and submit them as normally scheduled.
    • Employers may want to emphasize that such employees may not work overtime without prior approval. Where possible, employers may want to be flexible with schedules and design their workplace policies during this pandemic around outcomes and results, as opposed to workflows and processes.
  • Expectations Regarding Duties and Deadlines
    • Duties, expectations, and deadlines should be clearly outlined and agreed upon by both the supervisor and the remote worker so they know each other’s needs.
  • Expectations Regarding Productivity
    • If appropriate to the job, Employers should indicate the amount of time the employee is expected to work per day or pay period.
    • Employers should also consider whether they want to set specific performance measures for employees (e.g., number of calls per day, number of files processed per week, sales volume per month, etc.) while working from home.
  • Expectations Regarding Availability, Responsiveness & Promptness
    • Employers should establish clear guidelines of how quickly remote workers are expected to respond to a request depending on the communication type, email, calendar invites, within working hours; when they are expected to be available for meetings; and the importance of attending “virtual meetings” in a timely manner.
  • Continued Adherence to Employers’ Established Meal/Rest Break Policies
    • Reminder that non-exempt employees must take all meal and rest periods, and may not perform any work during meal and rest periods. Employers should require that employees log their meal breaks.
  • Recording and Reporting Work Time
    • Employers should communicate to employees the method to be used for reporting time.
    • Employers should communicate their expectations for how frequently employees should be reporting their time.
    • Employers should emphasize to employees the importance to the ongoing success of the business of employees tracking time in a timely manner, while also conveying trust in their employees.
  • Any Adjustment to Employee Compensation, Classifications or Benefit Eligibility
    • Exempt employees need to be paid in full for any week in which they perform any work remotely. This means that if a nonexempt only works an hour during the week, they must be paid for the whole week. Nonexempt employees generally are entitled to pay only for time actually worked remotely, whether a full or a partial day.
    • Employers who are reducing exempt employees’ workloads may consider classifying previously exempt employees to “non-exempt” employees and paying them hourly if it makes business sense. However, such employees would then be entitled to meal and rest breaks, as well as overtime, in accordance with applicable laws.
    • If an employee’s classification (e.g., exempt/non-exempt or full-time/part-time), rate of pay, and /or any other benefits will change, employers should provide written notice of the change and the effective date of the change.
    • If employees will no longer be eligible for employer-sponsored health benefits, employers must provide them with all legally required notices, including COBRA notices and related documentation.
  • Guidelines for Communications with Non-exempt Employees
    • Employers/supervisors should inform employees of their preferred methods of communication. 
    • Employers/supervisors should inform employees if they have specific expectations or needs regarding timing of communications. 
    • Employers should state in the Remote Work Policy whether (and if so, under what circumstances) non-exempt employees are permitted to respond to communications outside of the regular work hours agreed upon.
  • Continued Adherence to Notice/Approval Requirements for Sick Leave, Vacation, the Need for Accommodation and Leaves of Absence Under Employers’ Policies (when possible)
    • The federal and applicable state sick leave, family medical leave, disability, and other leave laws still apply to eligible employees who work from home. If an employee is unable to work for any reason, employers should consider whether any leave laws apply and ensure compliance. ALBB attorneys are available to help employers analyze, respond, and properly document any need for leave.  

Equipment

Employers should ensure employees have the equipment and tools required to work from home. These may include laptop or desktop computers, printers, monitors, computer software, phones or phone lines, chargers, email, voicemail capabilities, internet connectivity, furniture, masks for employees who are required to interact with others (e.g., employees who must go to the post office for mailings), and other necessary equipment. If employers provide tools and equipment for their employees, their policies should establish that employer property is limited to authorized persons and uses, and that the employer will be responsible for any maintenance or repair of employer owned property. If employees are using their own equipment and tools, employers may have reimbursement obligations, depending on state law. (See Expense Reimbursement section below).

Reimbursement for Work-Related Expenses

A Remote Work Policy should identify the work-related expenses for which employees will be reimbursed. Depending on the state in which the employee works, employers may be required to reimburse certain expenses. In California, employers must reimburse employees for all “necessary expenditures or losses incurred by the employee in direct consequence” of the performance of the employee’s duties. 1

Each employer must determine what is “necessary” for employees to adequately perform their jobs. Such items may include: computer equipment, office supplies, expenses associated with mail and mail services, necessary office furniture, internet service, cell phone service, and electricity.

Employers are not required to reimburse employees for unnecessary expenses they incur such as for the purchase of additional and/or more expensive equipment (i.e., higher-grade printers).  Employers should clarify in their policies that any additional equipment or service charges above a certain reasonable amount need to be approved in advance.  

With regard to cell phone and internet service bills, California employers must reimburse employees for a reasonable percentage of the cost of phone and internet service they use for work. 2

This amount is likely to have increased now that remote workers are spending more time working from home and often do not have access to office phones, computers, and internet. Unfortunately, there is little guidance on how to determine a specific dollar amount that is reasonable. Employers can contact their ALBB attorney to discuss various reimbursement methods and which one may be right for their business.

Cybersecurity, Privacy and Confidentiality Obligations and Protocols

Working from home can create special security and confidentiality challenges. Once an employee begins to work remotely, the layers of security and confidentiality that typically exist in an office may diminish unless specific actions and policies are in place. For example, employees may send work-related files to and from their personal email accounts. Employees working remotely may also have family members who share their home computing devices or who can visibly observe confidential information in the remote work environment.

Employers’ Remote Worker Policies should require employees to take measures designed to enhance cybersecurity and to safeguard employers’ and clients’ confidential information while working remotely. Some elements of a Cybersecurity/Confidentiality Policy may require employees to:

  • Keep the employer’s and clients’ confidential information in the employee’s designated home work area and to not make it accessible to others;
  • Review the employer’s and clients’ confidential information in private;
  • Use only devices approved by the employer;
  • Protect and safeguard devices;
  • Create strong passwords;
  • Keep passwords private and not share passwords online;
  • Log in and out when not using the computer;
  • Use caution before opening suspicious emails;
  • Implement and update firewalls on personal computers; and
  • Use the employer’s VPN server (if applicable). 

Safe Workplace

Employers have obligations under federal and state safety laws3 to provide a safe and healthy work environment for employees, which extends to remote workspaces. In addition, employees may be entitled to workers’ compensation benefits for injuries that occur at home if the injury arises out of the course and scope of an employee’s job duties, as opposed to general home duties. Employers should include “safe workplace” terms in their Remote Worker Policies and require employees to comply with safety rules to limit employer liability.

Below are some ways employers can ensure a safe remote working environment.

  • Employees should sign acknowledgments that they will maintain a safe and healthy work environment that is:
  • Free of potential hazards (i.e. overloaded extension cords or tripping hazards)
  • Ergonomically sound – send resources and suggestions to employees
    • desks/chairs at appropriate height
    • keyboards adjusted properly
    • regular breaks to change body position
  • Equipped with light, temperature and sound controls
  • Employees should also agree to ask for their employer’s assistance if needed to create a safe and healthy work environment and to immediately report any injuries that occur    during  the course and scope of performing their job duties.

Employee acknowledgments should indicate that employers assume no liability for injuries occurring in employees’ home workspaces outside those that occur in the course and scope of employees’ duties. Employers should further state they are not liable for loss, destruction, or injury that may occur in or to employees’ homes. This includes family members, visitors, or others that may become injured within or around employees’ homes.

Employee Liability for Tax and Insurance Consequences

Employees should be informed and agree that they are solely responsible for tax and insurance consequences, if any, arising from an employer’s agreement to allow them to work remotely.

Employer Indemnification

Employers’ policies should require employees to agree to defend, indemnify and hold their   employer harmless from third party claims and losses arising out of and occurring at the employee’s remote work location.  

Employee Acknowledgment

Employers should require employees to acknowledge and confirm their agreement to comply with employers’ Remote Worker Policies.

Management of/Communication with Employees

In addition to creating a comprehensive COVID-19 Remote Worker Policy, employers should consider the importance of ensuring effective communication with and management of remote workers. Such skills promote connection and collaboration among the workforce, which leaves employees feeling heard, respected and valued. This leads to more satisfied employees overall, fewer employee complaints, and greater legal compliance. To foster connection and collaboration, employers should consider the following: 

  • Management Training

The challenges managers may have managing/communicating with employees in the office are likely heightened in a remote work environment. Managers might need guidance on how to best lead and manage employees in this unique situation.

  • Regular check-ins/Virtual Socialization

To engage employees and encourage them to feel like part of the team, it is important for managers to regularly check in with employees to: ensure they are on target to meet their goals; ask whether they need assistance; provide virtual socialization opportunities within the company; and provide them with updates regarding how the business is doing in this time of uncertainty.

  • Virtual “Open Door” Policy

Managers should be reminded of the importance of following a virtual “open door” policy and responding promptly to remote workers. This will help remote workers feel heard, and combat feelings of disconnectedness and anxiety employees may be feeling over fear of being “out of sight, out of mind.”

  • Responding to Employees/Providing Feedback

Managers should try to respond to employees and give feedback when possible so employees have a sense of their performance and an opportunity to learn.

  • Conflict Management

If managers have negative feedback to provide, they should do so thoughtfully and ideally in a verbal conversation.  A curt or harsh email to a subordinate or co-worker could be interpreted as a personal attack by a remote worker who may already be feeling a high level of anxiety, and could lead to allegations of discrimination and harassment. When providing negative feedback, it’s important to focus on the work and needed areas of improvement. After a verbal conversation, the manager can follow up with a written notice if necessary to document a performance issue (or place a written note in the managers file to document the conversation).

Conclusion

In these unprecedented times where millions of Americans are working from home, it is important for employers to take steps to ensure a satisfied and productive remote workforce. Providing clear and thoughtful guidance should help eliminate worker anxiety and protect employers from potential liability. Employers can contact their ALBB attorney or any member of our COVID-19 Taskforce for assistance on managing remote workers or preparing a Remote Worker Policy.

For more information on employers’ obligations to employees during the COVID-19 pandemic, suggested policies, or other employment issues, please contact your ALBB attorney or any member of our COVID-19 taskforce: Jennifer Branch (jbranch@albblaw.com), Kelly Folger (kfolger@albblaw.com), Melissa A. Lewis (mlewis@albblaw.com), Carrie Battilega Luetzow (cbluetzow@albblaw.com), Lara P. Besser (lbesser@albblaw.com) and Jessica Yang (jyang@albblaw.com). 

End Notes:

 

  1. California Labor Code Section 2802.
  2. Cochran v. Schwan’s Home Services Inc. (2014) 228 Cal.App.4th1137.
  3. See e.g. California Labor Code section 6400, which obligates all California employers to “furnish employment and a place of employment that is safe and healthful for the employees.”