The COVID-19 pandemic has brought many changes to the way organizations operate and employ their work forces. Some changes have heralded a new normal from which there’s no going back.
Kate Lister, president of Global Workplace Analytics, estimates that by 2025, 70 percent of the work force will work remotely at least five days a month. “I think the percentage of people with compatible jobs will expand as knowledge-based work continues to edge out jobs that require a physical presence.”
Drawing from the results of an Owl Labs remote work study in 2019, Rani Molla stated even before the onset of the pandemic: “[R]emote employees … make up anywhere from 5.3 percent (those who typically work from home) to nearly two-thirds (who work remotely ever) of the U.S. work force.”
Remote work isn’t simply a matter of sending employees home with laptops and cell phones. There are some legal and practical concerns many employers fail to consider in using a remote work force.
Employers must remember remote workplaces are still physical workplaces, and employers must be aware of safety issues that arise with remote work. Employers of remote employees are still required to provide safe workplaces.
As a general rule, the Occupational Safety and Health Administration doesn’t inspect home offices, hold employers liable for home offices or expect employers to inspect home offices. But for other home-based work, such as assembly or manufacturing, OSHA will conduct an inspection if an employee complains a safety or health hazard exists that could cause physical harm or pose imminent danger of harm. OSHA will only inspect employee work activities, not the entire home or furnishings. But the employer is still responsible for hazards caused by materials, equipment or work processes it provides or requires to be used in an employee’s home.
Remote employees are still covered by workers’ compensation insurance. Employers are liable for injuries that take place in locations employers authorize employees to work or expect them to work. That might be the employer’s home, but could be a neighborhood coffee shop. The key factor is whether or not employees were performing work duties when they were injured, and the injury occurred in the course and scope of employment. This is hard to monitor in the traditional workplace, where the employer controls the premises. It’s much harder to assess when employees work away from a single workplace.
Employers need not take extraordinary steps to eliminate every dog toy between a home office and coffee pot. But employers should put into place policies or agreements with remote workers that spell out reasonable safety rules.
An employee’s location doesn’t relieve an employer from providing reasonable accommodations to enable the employee to adequately perform essential job duties as required by the Americans with Disabilities Act (ADA). Common home office accommodations include visual aids for computer users, ergonomic chairs or computer keyboards and standing desks.
The Fair Labor Standards Act (FLSA) requirements to track non-exempt employees’ time, keep records of hours worked and pay overtime for hours worked over 40 in a workweek apply to remote workers. Out of sight is not out of mind. Employers must maintain adequate timekeeping systems for employees who aren’t subject to physical verification of work attendance. Employers also must remember they can’t reduce exempt employees’ salaries “because of variations in the quality or quantity of the work performed.” Employers should take corrective or disciplinary actions to address inadequate performance or attendance.
Employees may allege decisions on who may work remotely and to what extent employees may do so are discriminatory under civil rights laws. Employers should establish telework guidelines and apply them. Employers should document the reasons for a particular telecommuting decision and retain this documentation. Once telecommuting decisions are made, employers should clearly communicate with employees about how the decisions were made, what factors were considered and why a given employee was or was not selected for remote work.
Employers should check with their property damage and general liability insurance carriers to determine whether or not their policies cover remote work locations — especially if significant employer-provided materials, equipment or products are kept in employee homes. Employers and employees alike might discover homeowner policies don’t cover employer-provided home office equipment or employer property.
Every opportunity brings new challenges. Implemented correctly, employers and employees might find remote work satisfying and productive.