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  • Working in a Socially-Distant World

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    March 18, 2020

    Source by Daniel Burke

    As employers large and small increasingly implement work-from-home as a workforce response to the current health crisis, it’s a good time to brush up on the legal and practical issues remote working (“telecommuting”) presents.

    Understanding that employers are responding in real time to this unfolding and unprecedented health crisis and “the perfect should not be the enemy of the good,” here are a checklist of potential concerns to consider and some best practices tips:

    Potential Concerns

    • Compliance with Federal and State Wage/Hour Regulations. The employer must accurately monitor non-exempt telecommuters’ hours and ensure that telecommuters do not overstate or understate their hours.
    • Paid Leave
      • Congress is likely to pass a new paid leave amendment to the FMLA in the next day or two that is expected to dramatically impact employers. We are actively monitoring that and will issue an alert as soon as it passes.
    • Safety and Insurance
      • Occupational Safety and Health Act (“OSHA”): The Department of Labor (“DOL”) does not hold employers liable for home office safety or expect employers to inspect home offices.  The DOL, also, will not inspect a home office.  The DOL will, however, enforce other compliance obligations, including the employer’s responsibility to keep records of work-related injuries and illnesses that take place at home offices.  And employers are still responsible for the safety of telecommuters when they work from home.
      • Workers’ Compensation: Telecommuters are covered under workers’ compensation as long as they were injured during the scope of employment.  It may be difficult, however, to determine if the telecommuter was acting within the scope of employment when the injury occurred or, for example, had taken a break to perform household chores.
    • Information Privacy and Security
      • The employer’s confidential and proprietary information must be kept secure. Confidential/sensitive business information at home should be stored privately and securely whenever possible and employees must be vigilant when transporting such information in a vehicle.
      • Remind telecommuters not to take work calls in range of an Alexa, Google Dot, or other listening device that is “on,” as the calls could be inadvertently recorded.

    Equipment and Technology

    • There must be a proper infrastructure in place to allow an employee to access the company’s computer network from a remote location. Additionally, consideration must be given to the costs of providing the telecommuter with any necessary equipment, costs in maintaining and servicing the equipment, and whether the organization’s insurance policy covers equipment located in a telecommuter’s home.

    Best Practices

    • Use language like the following to set the context/tone for working from home: “Because of the extraordinary situation in the workplace caused by the coronavirus, you will be working remotely for a temporary period.  We understand that you might not be able to perform all of your job’s essential functions during this temporary period because you will be working remotely.”
      • The purpose of the above language is to preemptively protect the company down the road when the company denies an accommodation request to work from home because the employee cannot perform the essential functions of his job. The employee will argue that it was not a problem during the coronavirus outbreak.
    • Develop a written telecommuting plan that also considers/addresses the following:
      • The duration of the telecommuting arrangement;
      • Work hours and adherence to FLSA time-keeping regulations;
      • Reporting use of personal leave while working from home;
      • Equipment and technology requirements, IT support;
      • Workers’ compensation coverage and safety standards, including the procedure for reporting workplace injuries that occur at the home office;
      • Safeguarding the employer’s data;
      • Who will bear the costs associated with maintaining a home office;
      • Communication with supervisors and other colleagues; and
      • Requirement that the telecommuter adhere to all applicable laws, regulations, and employer policies while telecommuting.
    • Be sensitive to the anxiety employees may be feeling in this environment and the extra stresses that working from home may present for some; remind employees that the company has an Employee Assistance Plan (“EAP”) available for such situations.