Type: Law Bulletins
Date: 06/24/2020

Considerations for Deploying Employees for Indefinite Remote Work

One significant change resulting from recent stay-at-home orders associated with the COVID-19 pandemic is the transition to remote work. In what seems like an instant, millions of employees and their employers were forced to adjust to the reality of closing physical office spaces indefinitely. For many, this remote working “experiment” is considered a surprising success, and has led to speculation about whether certain sectors of the economy may permanently move toward a remote or partially remote workforce, and what impact will remain after COVID-19 concerns wane.

While it may take more time to answer these questions completely, it appears that working remotely will, to at least some degree, play a greater role in the workforce than it did before the pandemic.

When navigating the remote working environment, even as stay-at-home orders are lifted, employers will benefit from thoughtful consideration of the wide-ranging impact of this shift as they develop formal remote work policies and/or deploy their workforce into remote work indefinitely. Below are some considerations for employers weighing whether a remote work environment is beneficial for its business on a more permanent basis.

Purchasing and Transporting Office Supplies and Equipment for Home Use

Before allowing employees to bring office equipment to their homes, check if the equipment is on a lease. If it expires while the employee is remote, coordinate an extension to avoid fines. Companies might consider offering employees the option to purchase identical equipment for their use at home.

Tracking Employer Equipment

Tracking company-owned equipment is especially important for electronic devices that contain confidential company information and trade secrets. Failure to adequately safeguard company devices could lead to increased data privacy and information security risks and may compromise the employer’s ability to seek judicial protection of its trade secrets in the future. Employers should also monitor employee activity on sensitive servers and databases and make sure that only those authorized to view sensitive information are doing so. Finally, remote work policies should provide employees with guidance on maintaining the confidentiality and security of confidential information. 

Insurance for Theft of Office Equipment

Before employees bring office equipment to their homes, check your insurance policy so you know what is covered in case of theft. Compare the cost of replacing the stolen equipment to your deductible. It may be less expensive to forego filing a claim with your insurance provider.

Expanded IT Support

As you deploy employees into a remote work environment, consider the following IT needs:

  • Capacity: Evaluate your network capacity and make sure your company has bandwidth for employees to connect to company resources from home.
  • Licenses: If you have a limited number of licenses for multi-factor authentication, mobile device management software, and terminal server remote access servers, you may need to coordinate with vendors to negotiate, procure, and install additional licenses.
  • Equipment and Skills: Find out what resources your employees have at home through an online survey. You will want to know if home computers, mobile devices, and internet access is available in home office environments, if they function as needed, and whether they can accommodate the necessary security protocols.

Maintaining Files

Communicate with remote employees often about expectations for handling sensitive company information. If employees save company information, they should save it to a secured online workspace provided through the IT department rather than saving it locally. Printed information should be disposed of or recycled at the office or a secure shredding location.

Securing Work

Remote workplaces must be no less secure than the traditional workplace. Considerations for maintaining a secure remote work environment include:

  • Maintain the same privacy and security policies as in the traditional workplace. Working remotely must not weaken safeguards for company data.
  • Remind employees that any use of company systems or data is subject to monitoring or review.
  • Establish a mechanism to communicate with employees through non-company devices, such as personal cell phones, to convey updates, especially in case of a security incident.
  • Remind employees often to be vigilant against phishing attacks and to be aware of their surroundings when using company computers or discussing company information.
  • All remote connections to your company network should happen via a secure connection or virtual private network (VPN) using multifactor authentication.
  • Employees should work on company-owned devices installed with antivirus software. Portable devices should be encrypted at the hard drive level with a key maintained separately from the device.
  • Company data and devices should be physically secured using locks or other means to prevent theft or unauthorized use.

Learn more about operational and security considerations for supporting your remote workforce.

Employee Engagement and Connectivity

Evaluate and implement appropriate collaboration tools to ensure employees can work with one another and with clients or customers.

  • Establish a single source, like the company intranet, for COVID-19 policies and employee communications.
  • Provide integrated softphone and audio conference service options so employees can use phone service and conference calling remotely.
  • Procure a stable and secure web conferencing and collaboration solution.
  • Provide electronic signature capabilities to accelerate document production with clients and employees.
  • Transition paper billing and review processes to electronic methods.
  • Ensure electronic scanning services are available so that mail can be delivered electronically.

Determining Which Employees Can and Should Work Remotely

When seeking to determine which employees should be first to return to the workplace, employers should base decisions upon business needs and documented criteria. Here are some things to consider:

  • Determine which job positions can be performed productively in a remote setting.
  • Focus on essential sectors first, as the essential jobs that cannot be conducted remotely should be the first priority for returning to the workplace.
  • Consider a phased approach that first allows employees to return on a voluntary basis or staggers schedules and shifts.
  • Provide shift or hours flexibility where possible to employees who are impacted by school and child care closures or public transportation risks and need additional options.
  • Be flexible and engage in dialogue with employees who request a reasonable accommodation due to their being at higher risk for severe illness from COVID-19.
  • Request employees return to the traditional workplace based upon job functions, business needs, and documented criteria.
  • Communicate regularly about office developments and precautions, because the safer the employee feels about being in the workplace, the more likely he or she will embrace returning to the workplace.

Employee Hiring and Firing

Employers with temporary or permanent remote workforces, and which consequently hire and fire employees remotely, should give careful consideration to adjustment of the processes they ordinarily use. Here are some tips:

  • Hiring:
    • Implement an online application portal and a secure videoconferencing platform for interviews. Know that laws regulating the recording of video interviews vary by state and may require interviewee consent.
    • If an applicant must be interviewed in person, use appropriate safety measures including self-assessing health, limiting the number of people in the interview location, practicing social distancing within the interview space, and requiring use of masks. Refrain from handshakes and sanitize the interview space between interviews.
    • Be cautious when choosing not to hire someone who refuses to work onsite. There is no requirement to accommodate a general fear of contracting COVID-19, but employers should engage in the interactive process if an applicant requests a medical-related accommodation or discloses an underlying health condition that may place him or her at higher risk of serious illness.
    • However, employers may not unilaterally postpone the start date or withdraw a job offer because the individual is part of the higher risk or vulnerable population (as defined by the CDC). Employers should not ask applicants if they are part of a high risk or vulnerable population.
  • Firing
    • In the current economic climate, terminating employment can put staff in a particularly difficult situation. Consider offering a severance or providing a reference for future job opportunities.
    • Properly document the reason for and events leading up to termination. To avoid potential discrimination and wrongful termination claims, make certain the termination is for a reason or progression of discipline that would normally result in termination.
    • Consider doing termination meetings by secure video rather than in person. Follow up with post-termination documents, such as severance documents, health insurance instructions, and information about unemployment benefits.
    • Many states require employers to provide information regarding unemployment benefits to employees at the time they separate from their employment, and some states recently implemented such requirements in light of the pandemic. Be sure you are familiar with the requirements for the jurisdictions in which you operate.
    • Collect any company-owned equipment and terminate access to company servers and email. Consider paying for shipping or providing a courier service to collect such equipment.
    • Notify the workforce, especially those who worked closely with the terminated employee, that the individual is no longer employed at the company with a general message.

Learn more about considerations for hiring and terminating employees during the pandemic.

Workers’ Compensation

If a remote worker is injured in the course of and arising out of work-related activities, he or she will generally be eligible for workers’ compensation benefits. The primary inquiry will likely be whether the injury arose out of employment, as working from home provides ample opportunity to blend professional activities with personal ones. An injury arises out of employment when there is a causal connection between the injury and employment. Defense of these claims will require a detailed factual inquiry into the nature of the injury and the circumstances surrounding it.

Developing and Revising Employment Policies

Whether your organization is encouraging employees to return to the office or providing flexibility for remote work, personnel policies deserve particular attention. Public health guidelines and occupational safety requirements should be the focus when reintroducing employees to the workplace. Management should develop a detailed plan to implement mitigation measures and provide it to employees for written acknowledgment of understanding and compliance. If screening or testing employees, those measures should also be provided in a written policy to employees. Policies on disability accommodation may also be at issue for employees in high-risk categories.

Employers should have policies to address appropriate home workspaces; arrangements for computers, supplies, and other necessary equipment; dependent care; responsiveness and work hours; and tracking work time. 

Non-Exempt Employee Timekeeping

Generally, timekeeping practices that apply to non-exempt employees who work on-site apply equally to non-exempt employees who work remotely, including recording all time worked, meal and rest breaks, and overtime policies. Reiterate expectations in writing and ensure that your systems facilitate accurate time entry and help flag missing entries or unauthorized overtime. Employers may consider requiring non-exempt employees to certify the accuracy of their time entries. Without the benefit of in-person supervision, managers may more closely monitor remote employees’ hours and work activities. 

Productivity and Monitoring Communications and Location

Employers moving to a remote work environment often ask what they can do to ensure that remote employees are actually doing what they are supposed to be doing – working – while on company time and using company equipment. Such questions have led to an increase in the number and range of digital surveillance applications and programs to monitor employee productivity. They range in functionality from tracking what an employee types; to tracking internet use; to documenting what employer files are accessed and when; to recording a computer’s idle time; to monitoring an employee’s physical location or using a device’s webcam. Employers generally will have the right to monitor what employees do while using the employer’s systems, especially if they provide notice and obtain express permission to perform specific types of monitoring. However, employees have privacy rights as well, particularly in their own homes. Employers considering any heightened level of monitoring for remote employees should ensure that their usage and policies are compliant with federal and state law, and are applied in a non-discriminatory manner. 

Tax Implications

As remote work arrangements become permanent, employers should pay particular attention to employees providing remote work in other states or municipalities. If an employee works remotely in a state for an out-of-state business, the employer must assess whether the arrangement creates a nexus with that state so as to trigger state income, franchise, and sales and use taxes. Notably, a number of states and localities have adopted interim policies allowing limited waiver of business income tax nexus for an employer where employees are temporarily performing services in that state (read the summary), a direct response to the rapid shift to remote work caused by COVID-19. Regardless of whether such remote work arrangements become permanent, employers should consider potential tax withholding requirements, as well as nexus and apportionment of income among states.

Members of Taft’s Evolving Workplace Task Force are available to answer questions and assist employers and businesses.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.

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