Paul Peter Nicolai
Remote Work Legal Issues
Updated: Feb 9, 2021
Technology and changing preferences make remote work possible for a large part of the workforce but before COVID-19 it had not been widely adopted. COVID-19 forced wide-spread acceptance of work-from-home arrangements. While many employers will return to a more normal pattern in coming months, some will decide to implement permanent remote work programs. Here are some things to think about.
Wage and Hour
The FLSA and state equivalents create a variety of obstacles for employers implementing remote work. These laws typically require that covered employees receive over-time pay and are paid a minimum wage. Remote work can complicate an employer’s ability to ensure compliance.
Remote work programs can increase the difficulty of accurate time-keeping since employers may not be able to easily supervise start/end times, breaks and overtime.
While reimbursable work-related expenses generally mean expenses like uniforms, travel expenses and other employer-directed purchases, if an employer requires employees to work remotely, some home expenses, like internet bills, may be considered work-related. In California, if an employer requires employees to work remotely, it may be required to reimburse them for part or all of expenses associated with phone lines, home internet and necessary hardware like computers.
Employers may be able to manage these risks by (1) using time tracking software to track employee hours; (2) confining work hours to specified time periods; (3) implementing clear policies prohibiting employees from working unauthorized over-time hours; (4) implementing clear policies on employee expense reimbursements consistent with applicable law; and (5) using software to remind and require employees to take breaks when appropriate.
Workplace Safety Concerns
Employers must provide employees with workplaces that are free from recognized hazards. Laws governing workplace safety, like OSHA, apply to some extent even when the workplace is a home. If more employers implement permanent remote work programs, these laws may be more liberally applied.
OSHA guidance, now more than twenty years old, says OSHA will not hold employers accountable for ensuring safety in employee home offices. While its current position is unchanged, employers are required to document and maintain records of work-related injuries that occur in home offices. OSHA has provided examples to help determine whether an injury that occurs in a home office is work-related.
Employers can face significant fines for violating workplace safety laws.
Employers may be able to control these risks by (1) performing inspections of employee home offices to ensure each location is free from recognized hazards; (2) liberally documenting and recording remote employee injuries suffered at home, even if the connection between the injury and the work is slight; and (3) frequently checking in with employees to create a record of monitoring employee safety.
Regular attendance and presence on-site have been considered an essential function of many jobs, but not all. The determination is very fact intensive. Once court said that attendance is an essential function of a department store’s cosmetic sales position, given the interactive nature of the job. It also said regular attendance is an essential function of essentially every job. However, that court has also said that essential functions of certain jobs, like customer service representatives, may not include attendance when the job can be performed satisfactorily from home.
Likewise, another court said attendance is an essential function of a resale buyer position, as the position requires frequent face-to-face interactions with teammates and suppliers. Yet, the same court has also said attendance may not be an essential function of positions in human resources if employees can perform work tasks in a timely and effective manner from home.
Other courts have said regular attendance is an essential function of positions in management, manual labor, employee and vendor training, teaching, emergency dispatch, and warehouse supply. In each instance the courts focused on a variety of factors, like the employer’s judgment and the availability of other employees to perform certain tasks. While deciding whether attendance is an essential function of a position can be easy when a job requires in-person interactions, immediate access to documents or other information unavailable remotely, or manual labor components, things get complicated when a position solely or largely involves telephonic or online communications or document interactions.
Typically, an employer’s judgment is given deference in deciding whether attendance is an essential function of a job. Mandatory work-from-home programs because of COVID-19 may test this. The reality exposed by mandatory work-from-home may be a consideration for courts in determining whether on-site attendance remains an essential function of a job.