REMOTE WORK IN THE COVID19 ERA
COVID-19 catapulted businesses into an often unexplored, mostly-unknown world of remote work. Within just a few months after the COVID19 pandemic began in the United States, the number of full-time US remote workers increased drastically. Workers seemed, for the most part, to appreciate the ability to work remotely, with roughly two-thirds of employees working remotely expressing in a recent Gallup poll that they would like to continue to work remotely.
Remote work, while enjoyed by many, can, and in many cases has, created a number of issues that businesses must address. Some of these issues are outlined in the following paragraphs.
One of the first questions businesses had to answer was which employees were eligible to work remotely. As with essentially all other business questions, employers could potentially be exposed to claims of discrimination based upon how they make this determination. To minimize the risk of such claims, employers can take the following steps:
Establish objective, business-based criteria for determining which positions are eligible to work remotely,
Apply those criteria consistently, and
Consider any employee request to work remotely due to a medical condition as a request for an accommodation under the Americans with Disabilities Act (“ADA”).
When employees ask to work remotely, be prepared to engage in the interactive process required under the ADA, regardless of whether the employee’s specific position is not eligible to work remotely or none of the business’ employees work remotely. Keep in mind that employees are not entitled to the accommodation of their choosing in most instances. Businesses, however, can create a potential discrimination claim in favor of an employee by simply not engaging in a discussion with the employee about a requested accommodation.
A great resource on this topic can be found on the Equal Employment Opportunity Commission’s (“EEOC”) website.
The rise of COVID19 saw an increase in the number of employees moving to other States (or countries) to work remotely. According to the United States Postal Service, just under 16 million Americans moved in the past year during the pandemic. Those moves have brought about a host of potential employment issues, including the following:
The Right to Do Business in Other States
Check with local authorities and/or your local ALFA attorney to see if a particular State in which your employees are working remotely (away from your home office) requires your business to register to do business in that State and/or requires registration with the local taxing authority. There can be serious issues that arise for companies “doing business” in a State in which they are not authorized to do business.
Wage and Hour Issues
These issues are discussed in greater detail below.
Home Office Expense Reimbursement
Some States, like California, require reimbursement for such expenses such as portions of cell phone and internet service bills that are attributable to work use for remote workers.
The leave rights granted to workers under the Families First Coronavirus Response Act expired on December 31, 2020, but employers need to remain aware of the leave rights still available to their remote workforce under both federal and State law.
In particular, the Family and Medical Leave Act (“FMLA”) still affords employees certain leave rights.
The FMLA applies to businesses who employ 50 or more employees within 75 miles of the worksite (in addition to other requirements that are not germane to this discussion). The regulations make clear that an employee’s personal residence is not a worksite but is, instead, the office to which the employee reports and from which assignments are made. What happens then if the employee’s supervisor is also working remotely from another State? While the issue becomes more complicated in that scenario, the regulations’ use of the term “office” seems to suggest that the company’s headquarters, rather than the location of its supervisors, is the key for calculating the company’s employee count.
Federal law, save for the FMLA, does not mandate that a private employer provide sick leave to employees. Numerous States (and other local jurisdictions), however, have implemented sick leave laws. Massachusetts, for example, requires that employers of all sizes must provide sick leave, but only employers with more than 10 employees have to offer paid sick leave. Other States, like Mississippi, have no sick leave rules for private employers, so be mindful of where remote workers are performing work.
Civil Rights Laws
While some States, like Mississippi, have no State-level anti-discrimination laws, others afford employees much greater protections than Title VII, the Age Discrimination in Employment Act, and the ADA. Employers should determine what exposure they are potentially creating for themselves before they allow employees to work remotely in particular locations.
States have varying rules about the threshold for creating a “taxable presence” in the jurisdiction. Employees may potentially owe taxes in both the State they work in (their home State) and the State in which their company’s headquarters is located. Employers should also be aware of what taxes (employer taxes, Social Security, Medicare, property, and so on) are owed when their employees work in other States.
Unemployment and Worker’s Compensation Issues
Do your company’s policies apply to remote workers? Are riders or additional policies necessary? It is important to make sure that your business has the coverage it needs.
Be cognizant of applicable rules on payday frequency, paycheck delivery, payroll deductions, overtime calculation, and payroll tax calculations for the States in which remote workers are located.
Meal and Rest Breaks
These issues are discussed in greater detail below.
Limiting Where Employees “Work”
Consider implementing a policy that sets limitations on where employees can work. The policy may also require employees to obtain prior approval to move to a location that is not on the approved work site list or risk termination. It may also be appropriate for some businesses to have employees sign an agreement that identifies their work location.
It is entirely feasible given today’s world that out-of-State applicants will apply for jobs with your company. Be sure to review local laws on background checks, questions that cannot be asked during the application and interview process, and contract issues such as noncompete provisions.
Employees who work remotely must still have access to the various postings required under federal, State, and local employment laws. Employers may be able to satisfy their posting obligations through electronic dissemination but should check with each jurisdiction in which employees are working remotely to be sure.
Check with the State in which your remote employee works to see if you must reimburse the employee if the employee is asked to return to the office for business reasons.
More than one-third of States now mandate that employees receive sexual harassment training. Be mindful of the requirements for each State in which remote workers are located.
Venue and Jurisdiction Issues
Having employees work remotely in “liberal” venues could subject your business to being sued in those locations. It could also potentially result in exposing the business to expensive class action litigation.
These issues are discussed in greater detail below.
One of the biggest concerns that employers have expressed regarding remote work is how to ensure that remote employees are, in fact, working. Technology allows businesses to monitor what employees are doing while they are out of the office, but monitoring employees’ work comes with potential pitfalls such as the following:
Some States prohibit employers from requesting employees’ social media login and password information – that information could potentially be obtained through employee monitoring.
State privacy laws could be implicated for any recorded calls or video chats.
Employers may also obtain employees’ health information via software features like keylogging – have appropriate protocols in place to address this potential issue so that the ADA, HIPAA, and/or GINA violations do not occur.
Have protocols in place on how to handle employees’ financial information that is gathered while monitoring remote employees’ work.
If an employer intends to monitor its employees, it should consider disclosing that fact to employees. Employers should also be careful to monitor employees equally and consistently so as to avoid the potential for a discrimination claim.
Remote worker safety and injuries
The Occupational Safety and Health Act (“OSHA”) obligates employers to provide workers with a workplace that is free from recognized hazards. The DOL, however, has made it clear that it will not inspect employees’ home offices for OSHA violations and will simply pass along complaints related to home offices to employers. That, of course, should not be considered a “free pass” for employers. At a minimum, employers run the risk of having worker’s compensation claims filed against them by workers who are injured in unsafe home office environments.
Remote work policies
Given the increase in remote work, businesses would be wise to review their policies to determine what provisions need to be revised, added, or deleted. Some of the potentially relevant policies, in addition to the topics noted above, include the following:
Make it clear what the employer’s expectations are with regard to the availability of remote workers. Whether the expectation is that workers will set their own schedules, be available from 8:00 a.m. to 5:00 p.m., or some variation thereof, employees should be told what is expected of them.
Outline any procedures, including the desired timeliness, of responding to superiors and co-workers.
Have clear policies on how hourly employees are to record the time worked while out of the office.
Off-The-Clock Work and Overtime
Set clear expectations about when employees should and should not be working.
Spell out what remote workers are to do if the home office is closed. Remember that if non-exempt, hourly employees work, even on days when they are asked not to do so, they must be paid for the time worked. A well-written policy, however, will allow you an employer to discipline an employee for engaging in this conduct.
With the rise in cybersecurity/phishing attacks, coupled with having employees working remotely (using company devices that store company and client information on a variety of WiFi sources), businesses need to be extremely vigilant to ensure proper data and cybersecurity practices are followed by employees. Employees should be reminded of the company’s IT policies, to avoid using public WiFi, to be vigilant for suspicious emails, and to be cautious when sending sensitive information from their home workspaces.
WAGE AND HOUR ISSUES
Non-Exempt, Hourly Employees
Employers must pay employees for all hours worked, including work not requested but which was “suffered or permitted,” and that includes any work done remotely. Employers have the right to require employees to record the time worked accurately and have the right to discipline employees who fail to do so pursuant to company policy.
An employer is protected by a presumption that an hourly employee has only worked the hours he or she has reported unless the employer has actual or constructive knowledge to the contrary. According to a Field Assistance Bulletin issued by the Department of Labor’s Wage and Hour Division, the mere promulgation of a rule requiring accurate reporting of time worked is not adequate to create this presumption as the employer “has the power to enforce the rule and must make every effort to do so.” Recognizing that employers have some obvious degree of difficulty in determining exactly when remote employees work, the test boils down to whether the employer’s inquiry into unauthorized work was “reasonable in light of the circumstances.”
Employers wishing to take advantage of this presumption can take steps, such as the following:
Review all policies to ensure they clearly require all time worked to be reported;
Have proper time reporting technology in place that allows employees to report both during and after their normal work hours;
If such technology is not available, develop a suitable substitute for such technology;
Train managers and billing employees on these issues;
Provide instructions to employees for instances when there are issues with reporting time;
Adopt policies that allow employees to report errors in timekeeping and/or paychecks; and
Fix errors that are brought to the company’s attention.
It is important to note that while the federal minimum wage rate applies in every State, some States have adopted much higher minimum wage requirements. Check each State’s minimum wage rules for out-of-State workers.
One of the other major concerns for businesses allowing remote work is maintaining their employees’ exempt status. Employers should be mindful of the following non-exhaustive list of wage and hour issues with remote workers:
Some States have established different criteria for determining an employee’s eligibility as exempt than those set out under the FLSA.
In addition, States, like New York, require higher minimum salary levels for exempt employees than that set out under federal law.
In many instances, the determination of whether an employee meets either the federal or State criteria for exempt status is a fact-intensive inquiry. Be sure to examine exactly what “exempt” employees are doing while working remotely. It is worth noting that the Department of Labor previously commented that exempt employees were permitted to perform some level of non-exempt work during the COVID19 pandemic without losing their exempt status.
Exempt employees who work remotely are entitled to receive a full week’s pay if they work at any point during the work week, just the same as exempt employees who work in the company’s office are.
Meal and Rest Breaks
Does your company offer meal and rest breaks, voluntarily or under State law (i.e., California)? If so, remember that remote workers must be treated the same as non-remote workers.
Additionally, if employees work remotely from other States than where your business is located, look to see what the laws of those other States require. California, for example, provides employees with meal and rest breaks based upon where the work is performed. McPherson v. EF Intercultural Found., Inc., 47 Cal.App.5th 243 (Cal.App. 2 Dist. 2020). Illinois, in turn, requires employers to provide an unpaid meal break of at least 20 minutes for any employee who works a shift of 7.5 hours or more, with the break occurring within the first 5 hours of the shift.
As with the other wage and hour issues, be cognizant of particular State laws on overtime. Colorado, for example, requires overtime pay for employees who exceed twelve hours of work in a workday or twelve consecutively hours worked.
Employers need to set out clear policies on timekeeping. They should also be diligent about enforcing the policies and addressing (or punishing) noncompliant employees.
Background/Legal Support for Vaccination Mandates
Long before the advent of COVID19, Courts concluded that the government, generally speaking, had the authority to require citizens to take vaccines or be subject to penalties unless exempt from the vaccination requirement in some way. In 1905, the United States Supreme Court in Jacobson v. Commonwealth of Massachusetts upheld a State’s right to mandate that adults received the smallpox vaccine. The Court so held on the ground that States’ general police powers granted them the authority to enact vaccine laws. Similarly, the Court in Zucht v. King dismissed an argument that requiring students to be vaccinated for smallpox in order to attend school violated their 14th Amendment due process rights.
More recently, federal judges in Texas and Indiana found that vaccine mandates were permissible. The Court in Texas held that a local hospital’s rule requiring employees to be vaccinated or face termination was acceptable. An Indiana Court similarly denied rejected a suit brought by several students at the University of Indiana in which the students claimed that the school’s requirement that they either vaccinate or wear masks and be tested twice a week for COVID19 violated the Due Process clause. The United States Supreme Court declined to hear the students’ request for emergency relief in August 2021.
In addition to those Courts, the EEOC has taken the position that employer vaccine mandates are lawful and do not run afoul of federal anti-discrimination laws.
The Latest on Vaccine Mandates
President Biden recently announced a six-pronged, comprehensive national strategy to combat COVID19. Under the President’s plan, large employers (at least 100 employees in total, regardless of whether they are all located at a single workplace or multiple) will be tasked with ensuring that its employees are vaccinated or otherwise having employees tested for COVID weekly. Employers are also obligated under the rule to give workers paid time off to get vaccinated and to recover from any side effects from the vaccination. Employers who do not comply with the rule face fines of up to $13,600 per violation. The new rule is expected to be issued by OSHA in the coming weeks and comes on the heels of President Biden’s previous Executive Order that required all federal government employees to be vaccinated against COVID19 with no option of being tested to opt out of the vaccination requirement. The President believes the new mandate will affect nearly 100 million workers.
Potential pitfalls with the mandate include, but are not necessarily limited to, the fact that OSHA employs only roughly 800 safety and compliance inspectors who will be tasked with overseeing the more than 100,000 private sector companies that are covered by the rule. Statistics show that about two-thirds of employers cited for COVID19 safety violations had not paid fines and that more than half had appealed OSHA citations.
While the President’s mandate was presumably designed to be simple – private employers with at least 100 employees must require employees to vaccinate or test or be subject to large fines – there are numerous unanswered questions that will have to be resolved during the rule-making process. For starters, the following questions come to mind:
Who pays for testing if the employee refuses to be vaccinated?
Can employers require employees to wear masks if they refuse to be vaccinated? Presumably yes.
Can employers require individuals who receive an accommodation (either due to a medical condition or a sincerely held religious belief) from the vaccination requirement to test and wear masks? Presumably yes.
How will the employee threshold apply to independently operated franchises and closely held or interrelated businesses?
What proof is necessary for an employee’s vaccination status?
What is the threshold for being deemed “vaccinated,” and will booster doses be factored into that analysis?
Will there be any consideration for individuals who are naturally immune or who have already contracted COVID19?
Will an employee be considered vaccinated only if the employee has received a vaccine approved by the Food and Drug Administration?
What are the consequences for falsifying vaccination status and/or test results, and does the employer bear any responsibility to check behind the employee’s documentation?
What testing standards apply for those who are not vaccinated, and will there be any quarantine (and/or paid leave) requirements for those whose test results are delayed?
What documentation will the employer need in the event it is audited or inspected by OSHA? How long must that documentation be kept?
Will employees received paid time off to undergo COVID19 tests?
How does the rule affect locations with collective bargaining agreements?
Will the rule preempt existing state vaccination rules and requirements?
Are exemptions based on medical disabilities and religious beliefs still valid under the rule?
Will the mandate be upheld as Constitutional in the face of what will likely be a host of lawsuits challenging it?
Regarding those lawsuits, at least some of which are expected to be filed by a handful of States, is the State, as opposed to a private employer, the proper party to such a suit?
The United States Supreme Court held in Bostock v. Clayton County, Georgia, 140 S.Ct. 1734 (2020), that Title VII prohibits discrimination based on an employee’s transgender status. While there may be some debate as to when a person qualifies for protection under Title VII, it is well settled that discrimination based upon an employee’s transgender status is a form of sex discrimination under federal law.
The question then is what accommodations, if any, a transgender employee may be entitled to on the basis of the employee’s transgender status. A small handful of Courts have taken up the question of whether transgender employees are entitled to protections under the ADA. In one case from Massachusetts, a transgender woman housed in a men’s prison sued the facility, claiming that it failed to make reasonable accommodations for her gender dysphoria. The Court denied the prison’s motion to dismiss, notwithstanding the ADA’s exclusion of “gender identity disorders not resulting from physical impairments,” finding there to be a fact question about the applicability of the exclusion. Adding to that, one author discussing the Court’s ruling commented that “even if an employee’s gender identity or expression does not necessarily entitle the employee to ADA accommodations, other conditions (e.g., stress, anxiety and depression) sometimes associated with the difficulty of being transgender or non-binary may qualify an employee for accommodations under the ADA.”
What accommodations is a transgender employee entitled to and/or what accommodations should employers institute voluntarily without a request from a transgender employee? The following is a non-exhaustive list of some potential accommodations:
Gender neutral bathrooms;
Health insurance plans that provide transgender-related care;
Training and education for all employees, particularly supervisors;
Revise the company’s non-discrimination, dress/appearance, and/or leave policies;
Require the use of preferred pronouns;
Address all complaints from transgender employees seriously; and
Engage in the interactive process with employees who are transitioning.
Statistics bear out that individuals with disabilities have a difficult time finding and keeping a job. Prior to the advent of COVID19, less than one-third of people with disabilities between the ages of 16 and 64 were employed in the United States, compared to nearly three-quarters of people without disabilities in that same age range.
In September 2020, the EEOC issued guidance confirming that employers are not required to accommodate employees desiring to work remotely simply due to concern that they or a family member might contract COVID19. The question, however, for employers is whether an employee’s desire to work remotely (a request for an accommodation) stems from an underlying disability that must be accommodated under the ADA.
The EEOC’s guidance makes clear that employers are not required to offer a telework or remote work program. Employers may also have restrictions on eligibility criteria (a one-year waiting period to participate in such program, for example). However, employers may be required, according to the EEOC, to waive such criteria if failing to do so would prevent a disabled employee from performing the essential functions of his or her job. The EEOC has further noted that allowing remote work may be a necessary accommodation for employers who have no remote work policy at all.
Employers have been directed by the EEOC to determine an employee’s need for an accommodation, including a request to work remotely, through the “flexible interactive process.” After receiving a request for an accommodation, an employer should identify the essential functions of the position. The employer and employee should then discuss what the employee needs to perform those essential functions (including where the work needs to be done). The EEOC has previously taken the position that it may be appropriate in some circumstances, potentially including the COVID19 pandemic, to temporarily alter the essential functions of the job in order to accommodate employees with disabilities. Employers faced with this scenario should consider whether this approach is appropriate, understanding that the change may be temporary and subject to restoration at some point in time. Employers do not waive the right to require employees to perform the essential functions of their jobs by temporarily allowing employees an accommodation along these lines.
Employers are not obligated to allow employees to work remotely, even if remote work is one of several reasonable accommodations. According to the EEOC, an employer may choose other reasonable, effective accommodations beside the one preferred by the employee.
Factors to consider in deciding whether to grant a request for remote work as an accommodation can include:
- Whether other employees work remotely;
- How frequently or long the accommodation will be needed;
- Whether the essential functions of the job can be performed remotely;
- Whether the employee will require special equipment to work remotely;
- Whether the employee can be supervised and effectively perform the work remotely; and
- Whether the job requires in-person interaction with colleagues, clients, or customers and, if so, whether those activities can be conducted in an alternate manner.
Employers should also note that the undue hardship rule still applies notwithstanding the COVID19 pandemic.
Employees are not required to have previously requested an accommodation before the pandemic or to have disclosed their disability or need for an accommodation. Employees may be entitled, in light of COVID19, to a temporary accommodation until the pandemic ends, and certain employees (pregnant employees and elderly employees, for example) may be entitled to the accommodation of remote work due to the increased risk of exposure to COVID19. However, caregivers of individuals with disabilities are not entitled to workplace accommodations under the ADA, although State laws may provide otherwise. As with all accommodation requests, employers should analyze such inquiries on a case-by-case basis.
Lastly, employers, particularly those whose employees are working remotely (or request the accommodation of remote work), should check to see if the State requirements for the jurisdiction in which their remote employees work have any impact on the ADA interactive process.
 29 CFR §785.11-12.
 Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905)
 Zucht v. King, 260 U.S. 174 (1922)
 Bridges v. Houston Meth. Hosp., 2021 WL 2399994 (S.D. Tex. June 12, 2021)
 Klaassen v. Trustees of Ind. Univ., 7 F.4th 592 (7th Cir. 2021)
 Doe v. Massachusetts Dept. of Corr., 2018 WL 2994403 (D. Mass. June 14, 2018).