Remote Work Considerations Amid Coronavirus

March 19, 2020 | From HRCalifornia Extra

by Bianca Saad, Employment Law Subject Matter Expert, CalChamber

The coronavirus, also known as COVID-19, is affecting us in ways that just a few short months ago were incomprehensible, and it’s making life for many employers pretty tough.

While the trend of working from home, also referred to as “telecommuting,” has grown over the years, coronavirus concerns have pushed many employers to allow remote work just so business can continue as isolations and quarantines increase.

Amazon and Google, for instance, have advised their employees to stay home for the time being, as have Apple and certain state governments. Some Bay Area counties have even ordered residents to shelter in place, and school districts statewide are closing in an effort to slow the spread.

While working remotely certainly is beneficial given the current circumstances, it can also present some unique challenges for employers — especially in California, where some of the wage and hour laws tend to be more restrictive. Here are some considerations to keep in mind when allowing employees to work remotely, whether consistently or to maintain business operations while doing your part to slow COVID-19’s spread.

Establish a Telecommuting Policy

Establishing a remote work/telecommuting policy can help employers systematically approach employee requests to work remotely and combat any issues that may arise due to perceived favoritism or unfair treatment among various employees. Some issues to consider when developing a telecommuting policy may include:

  • Criteria for assessing whether an employee can work remotely.
  • The need to keep accurate records of hours worked.
  • Logistics for supporting remote employees’ needs, such as support staff, office supplies and equipment.
  • How home office expenses and expenses for travel and parking at the company will be handled.
  • Office attendance requirements, such as which meetings will require physical attendance by remote employees and which can be managed by phone or online.

When it comes to creating your telecommuting policy, there’s not necessarily a one-size-fits-all approach. And you may even have different telecommuting policies for different groups of workers, depending on the circumstances. For example, your nonexempt employees who are required to clock in and out may have a different telecommuting policy from exempt employees who aren’t subject to the same requirements.

In addition to having a telecommuting policy, you may consider having your employees sign a telecommuting agreement that acknowledges their work schedule and other parameters within the telecommuting policy itself.

For employees only permitted to work remotely during extreme circumstances such as the COVID-19 pandemic, be sure your policy and agreement clearly state that remote work is temporary and employees may be required to resume their regular in-office work at any time.

Ensure Proper Employee Classification

It might be tempting to classify an employee as “exempt” simply because they work remotely, but to do so may open you up to liability. Regardless of where an employee works, that individual must be properly classified — which means meeting the legal requirements for a particular exemption. For example, the most common “white collar” exemptions are the Administrative, Executive and Professional exemptions, with required salary and duties tests.

For employees who do meet these salary and duties tests and are appropriately classified as exempt, keep in mind that, when they’re working remotely, they should be primarily engaged in exempt duties — meaning that more than 50 percent of the duties they’re handling are exempt. So, it’s important to be clear on the duties your exempt employee will be engaged in when working remotely.

Effectively Track All Hours Worked and Comply with All Wage and Hour Requirements

California’s wage and hour laws will apply equally to nonexempt employees working remotely, which means that having an employee who works remotely does not excuse your obligations under California’s wage and hour laws. When your nonexempt employees work remotely, you must:

Because remote employees aren’t supervised in the same way an on-site employee is, there can be some added challenges to monitoring required meal and rest breaks. Having a clearly written meal and rest break policy, however, can help combat those challenges. In addition to your standard meal and rest break policy, your telecommuting policy can reiterate that employees are expected to take their uninterrupted, off-duty meal and rest breaks.

You also need to have an effective method for tracking all hours your nonexempt employees work and pay for any overtime. As a reminder, California law requires all overtime hours to be paid, even if that time was not approved. Overtime pay is calculated at 1.5 times the employee’s regular rate of pay for all hours worked beyond eight hours in a workday or 40 hours in a workweek.

Additional Considerations

Keep in mind that if you have remote employees working outside the state in which your company’s office is located, the law in the state where the employee works is, in most cases, the law that covers that employee. For example, and employee working at their home in Nevada for an employer headquartered in California is generally governed by Nevada employment laws.

If, however, the out-of-state employee travels to California to work for a California-based employer, California’s overtime laws apply to any work conducted within the state longer than eight hours in a day or 40 hours in a week. Given the current isolation, shelter-in-place and quarantine directives, most travel likely will be restricted, but in instances where it isn’t, it’s important to remember this overtime requirement.

Similarly, for employees outside the city or county where your office is located, make sure you monitor and comply with local employment-related ordinances in the employee’s location. For example, many cities and counties have enacted minimum wage and paid sick leave ordinances that could affect employees working in a remote location.

It’s also important to keep workers’ compensation and workplace injuries in mind, as employers are required to maintain workers’ compensation insurance for all employees, whether they work on site or remotely. Under workers’ compensation, if an employee suffers an injury on the job, you are liable for the employee’s temporary disability benefits, medical expenses and possibly a permanent disability based on the injury’s long-term effects. Remote workers, whether they’re permanently remote or only temporarily to help slow COVID-19’s spread, enjoy the same protections as employees working in the office; they’re eligible for workers’ compensation if an injury arises out of and in the course and scope of employment. Having a clear definition of an employee’s normal working hours and job duties can be instrumental in evaluating whether a particular injury was work-related.

Employers also must be mindful of the various notices required under federal, state or even local law — such as industry-specific wage orders and state and local minimum wage notices. An employer’s posting requirements must still be met, even in situations where an employee works remotely from home.

If you have an employee who works 100 percent from home and never reports to a headquarters or other location, then you should mail hard copies of those notices to the employee’s home, where they can be posted. Otherwise, if you have an employee who does report to a physical location some of the time, ensure that the appropriate notices are posted and visible in that particular location.