Now is the time to review and update telework policies. With increasing COVID-19 cases and uncertainty about how schools will operate this fall, work-from-home arrangements and requests are in the foreseeable future. Having a detailed, well-thought-out telecommuting policy or arrangement can go a long way toward setting expectations and mitigating potential risks. Key considerations include the following:
It is critically important for employers to distinguish between telework arrangements being offered as a matter of standing internal policy versus a temporary measure in response to a government mandate caused by the pandemic versus an arrangement being offered as a reasonable accommodation under the Americans with Disabilities Act (ADA) or state disability law. If a telecommuting policy is in direct response to COVID-19, it should say so. The policy should begin by stating that it is a temporary change made to comply with social distancing and other federal and state health guidance. This helps ensure that employees do not have an expectation that this policy will be in place forever, and that the company can change or alter the policy at their discretion. The policy should clearly state that telecommuting is not an entitlement and does not change any terms of employment, including the at-will nature of employment.
2. Who is Eligible?
It’s important to state that telecommuting may be appropriate for some roles, but not others. The reality is that some people cannot perform the essential functions of their job remotely. Employers should make an objective determination of which positions can be performed remotely based on job category and function to avoid inconsistencies that could lead to claims of discrimination. Similarly, there should be a defined approval process to ensure uniformity and compliance with legal protections.
The policy should outline the requirements for working remotely including the following:
- Set the work schedule. Remember that non-exempt employees are still required to comply with meal periods, rest breaks, and all applicable wage and hour laws, including overtime policies.
- Explain how employees will be supervised and evaluated while working from home.
- Define how productivity will be measured.
- State which job responsibilities and duties remain in place while working remotely, and clearly state any that do not.
- Include clear expectations to maintain the same security and confidentiality standards that apply in the office.
- Address how employees are expected to balance caregiving responsibilities while working at home.
Workers’ compensation laws still apply while employees are working from home. Accordingly, employees should be required to have a safe and suitable space prior to beginning remote work. This space should be defined, and employees should be required to maintain the space in a safe condition. The policy should specify that liability is limited to injuries resulting directly from work and injuries that occur in the designated workspace during scheduled work hours.
5. Signed Agreements & Acknowledgments
In addition to a detailed written policy, employers should consider having employees sign individual telework agreements, especially if arrangements differ amongst employees. At minimum, any employee who is working remotely should review, acknowledge, and sign the written policy.
For more information on preparing telework policies and agreements, contact Amy Angel at 503-276-2195 or email@example.com.
NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2020 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2020 por Barran Liebman LLP.