COVID-19 Survival Guide for Employers

April 09, 2020 | From HRCalifornia Extra

by Matthew J. Roberts; Employment Law Counsel/Subject Matter Expert, CalChamber

The COVID-19 pandemic has dramatically altered the way many of us work and live — and, based on the federal social distancing guidance extended through April 30 and California’s stay home order in place for an undetermined time, it will likely continue to do so. The temporary workplace measures employers implemented a few weeks ago, such as remote working, are likely going to have a longer shelf life than what many of us originally contemplated.

While essential businesses that were permitted to remain open scrambled to establish remote working environments (to prevent business interruption and help slow COVID-19’s spread), both the federal and our state governments have passed or modified laws that have further complicated things for employers.

Ultimately, this flurry of activity in our temporary “new normal” has left many employers whiplashed. And those still in operation face several compliance concerns — primarily because many of our traditional laws remain in effect even as these newly-passed or -modified COVID-19-related laws are enacted.

Onboarding New Hires

Although the state has recently seen a record number of unemployment insurance claims, some employers are still hiring. But given the social distancing guidance and statewide stay-at-home order, traditional onboarding and new hire orientation practices are no longer workable. The “remote workplace” creates practical concerns that employers are encountering for the first time, such as completing the Form I-9 or ensuring employee access to required postings.

Recognizing this issue, the U.S. Department of Homeland Security deferred the physical presence requirements when employers are completing the Form I-9 for employees working remotely. Under this deferral, an employer may verify eligibility with digital tools such as video link or email. However, this deferral only applies to remote workers and once remote employees return to the worksite, the employer must physically inspect the documents used to complete the Form I-9 within three business days of the employee’s return to the worksite.

Also, in preparation for enforcing the Families First Coronavirus Relief Act (FFCRA) the U.S Department of Labor created a new workplace notice. Employers are required to the post the FFCRA notice in a conspicuous place where employees or applicants at the worksite may view it. For remote workers, the employer may satisfy the FFCRA notice requirement by distributing the FFCRA notice to employees via email or posting the notice on an employee information website.

Additionally, employers must ensure that remote workers are provided workplace postings and pamphlets as appropriate. Generally, California law doesn’t expressly authorize using electronic distribution of the new hire pamphlets, except for the Pregnancy Disability Leave notice. This means employers must either mail the paper versions to remote workers or consult with legal counsel if they wish to digitally send the pamphlets.

Further, federal and California laws require numerous postings in the workplace. Generally, these postings must be in a conspicuous workplace location where employees will tend to see them — which presents an obvious problem given the current circumstances. And because not all laws expressly authorize electronic postings, employers who have employees working entirely from home should mail hard copies of the posters with instructions to the remote worker to post the notices in their home.

Covering the Cost of Remote Working

Many employers have provided remote working to encourage social distancing, while others have required it in order to comply with the governor’s order. Whether required or voluntary, employers still have an obligation under California law to reimburse their employees’ reasonable and necessary expenses related to remote working. This list can be lengthy and include expenses not ordinarily considered, including:

  • Computer equipment, such as a laptop, desktop, printer and printing supplies;
  • Furniture;
  • Office supplies, such as pens, paper and envelopes;
  • Mailing services;
  • Internet;
  • Cell phone; and
  • Electricity.

Some expenses may be easily calculable, but others, such as electricity and internet usage, are complicated. Not only is it unclear what percentage of internet use will be attributable to job duties, but there’s also no clear standard rate for utility use similar to that of the IRS annual mileage rate for an employee’s personal vehicle use.

A California Court of Appeal case, however, may provide employers some guidance as far as personal cell phone use. In Cochran v. Schwan’s Home Service, Inc., 228 Cal. App. 4th 1137 (2014), the court held that an employer must reimburse “some reasonable percentage” of an employee’s personal cell phone bill — even if the employee maintains an unlimited data plan. So, employers will need to individually evaluate each reimbursement request for what constitutes a reasonable amount for reimbursement based upon work versus personal use.

Remember, the standard for expense reimbursement is necessary and reasonable. If an employee requires a desk, you don’t have to reimburse for a classic, mahogany executive desk when a reasonable and cheaper alternative is available. 

Maintaining Remote Workers’ Health and Safety

Even when workers are at home, the employer still has the same obligations to protect their health and safety, including continuing workers’ compensation coverage.

Perhaps more important, however, is injury prevention. More specifically, remote workers are now using office setups they may not have used before, so it’s important that employers work with them to ensure the home office setup doesn’t contribute to repeated stress-related injuries. Provide not only resources on appropriate ergonomic setups, but also ergonomic equipment as necessary, to assist with injury prevention.

Employers can also implement policies requiring the remote employee to maintain a workspace free from hazards and may require workers to submit photographs of their home office setups to ensure compliance with workplace safety policies.

Keeping the Home-Work Environment Respectful

For many employers, addressing harassment, discrimination and retaliation focuses on personal interaction between coworkers in the office. Now that remote employees are isolated and away from their coworkers, the worksite harassment concerns may be low on many employers’ priority lists. But remember, harassing conduct occurs based on who the employee is with, not where the employee is located.

Remote working actually gives rise to many hostile work environment and harassment challenges. For instance, many organizations now conduct important meetings and briefings with employees online, using videoconferencing technology so participants can see each other — but this technology may capture images or audio that, if seen or heard at the worksite, would constitute harassing behavior. We’re talking about an inappropriate poster or coffee mug, an inappropriate shirt, or even inappropriate language caught on a “hot microphone” when the employee forgets the microphone is still on. Many workers use, display or wear items at home that they wouldn’t at the workplace. So, it’s important to remember that although workers are at home, when they’re engaged in online meetings with coworkers, they must behave as if they’re in the office.

To keep this top of mind for remote workers, employers should remind employees about their organization’s harassment, discrimination and retaliation prevention policy; the code of conduct policy; and any electronic resources usage policies in effect. Employers should continue to enforce these policies and, upon receipt of any complaints of inappropriate behavior through these new collaboration tools, promptly, thoroughly and impartially investigate the claims.

Keeping Up to Date on Changing Rules

At present, one of the biggest challenges for employers is keeping up with the various local, state and federal rule changes that have occurred over the past several weeks — which also includes the new federal Emergency Paid Sick Leave and expanded Family and Medical Leave Act rules resulting from the Families First Coronavirus Response Act (FFCRA). This act applies equally to remote workers and employees still appearing at the workplace who work for any employer with fewer than 500 employees.

Employers should keep a library of internet links handy so decision-makers can access them daily and keep abreast of the rapidly-changing news. Here are some to consider:

In addition to these federal and state resources, employers should often check with their county and city government agencies on related local ordinances or orders in effect or that may take effect. 

The Light at the End of the Tunnel

Although our traditional work practices have been upended over the past few weeks, these remote work arrangements aren’t permanent — and they don’t have to fundamentally alter how employers do business in the future. Employers should establish a specific remote working policy for these conditions that includes statements that the arrangement is temporary and, when able, employees will be expected to return to the worksite.

In addition, employers who didn’t offer remote working in the past may return to that policy when the shelter-in-place and stay-at-home orders are lifted. Employers don’t have any greater obligation to provide remote working as a reasonable accommodation in the future than they did before the COVID-19 pandemic.

Lessons for Employers

Some key takeaways for employers during this time of high stress and uncertainty include that:

  • The requirement that employers physically view remote workers’ documents for Form I-9 compliance has been suspended. Employers may view these documents in a digital format and will only need to comply with the physical inspection requirement once the employee can return to the worksite.
  • California’s expense reimbursement statute is still in full effect. This means that employers must reimburse employees for any necessary and reasonable expenditures incurred while performing their job duties. For remote workers this includes equipment, supplies and utilities such as phone and internet.
  • Employers must continue to maintain safe and respectful work environments. Provide ergonomic tips and consults with employees to ensure they have proper home office setups. Remind employees that although they’re at home, whenever they’re working, they’re considered to be at work and must therefore behave professionally and adhere to all relevant workplaces policies.
  • Employers should routinely stay up to date on the latest news in order to properly prepare for a return to the workplace, as well as administer any new laws that have passed since the COVID-19 pandemic started.