The COVID-19 global pandemic has turned many business structures upside down.
Nationwide, employers have notified their employees to work from home to slow the spread of the virus. Despite this change in structure, maintaining the productivity of your employees ensures the survival of your business.
Employers must consider legal implications, procedural issues, and technological factors associated with this new telework environment. From payroll to tax considerations, if employers are advising employees to work from home, there are many issues to adapt to in the new workplace landscape.
Even when employees are working from home, employers must comply with the same federal and state laws intended to protect employees.Employment Attorney Kristi Benson
What Are the Factors to Consider for Working At Home?
There are several factors for employers to consider when determining whether the implementation of a work-at-home policy is feasible for their specific business.
Making the Decision to Switch to a Telework Environment
Employers should review their existing company policies and agreements with their employees and with third parties, such as customers, to determine if remote work is feasible for all or some employees.
Does a telework or implementation procedure exist? If not, employers should prepare for clear communication with employees regarding expectations, reimbursement of any related expenses, and management of employee productivity.
Employers should also internally review existing insurance plans and policy coverage data to determine if workers’ compensation and employee benefits, among others, remain in place despite the work environment change.
Employees should be technologically equipped to work from home with internet connectivity, a computer, a printer, and other business-specific needs. Employers must consider whether privacy and data controls are sufficient to protect the business and any other private information. These may include the following:
- The implementation of added security measures to protect data and its transmission;
- The maintenance and storage of company data on company servers and not personal servers; and
- The requirement of all company communications conducted exclusively through company emails and accounts.
It is important to consider the specific needs of your business in determining the level of privacy and controls you need.
Communication with Employees
Employers should provide defined expectations of employees working from home. It’s also a good idea to ensure clear communication channels to encourage employee communication with upper management.
Employers should also confirm with employees how existing company policies, such as workplace harassment and employee benefits, extend into the working-from-home environment.
Where possible, employers should obtain a written agreement from their employees of the new telework policy. The agreement should covers the following points:
- Which employees are permitted to work from home;
- Employee expectations when working from home;
- Employee hours of availability;
- Employee understanding of the company procedures related to the protection of private information and general security;
- Monitoring of employee productivity; and
- That the work from home policy is temporary and in response to the COVID-19 global pandemic.
An employee agreement can help cement employee expectations and encourage continued productivity.
Payment of Employees
Rules regarding how you need to pay your employees vary depending on whether the employees are considered “exempt” or “non-exempt” under the Fair Labor Standards Act (FLSA).
As defined, FLSA exempt employees performing work outside of the office will earn their salary. These employees are exempt from overtime but will be paid for a full workweek if they performed any work during the week. If exempt employees did not work during a workweek, they need not be paid. However, if the exempt employees are directed not to work by the employer, then they must be paid their full salary.
Employers must track the “type” of work exempt employees are carrying out. Monitoring procedures to measure productivity of exempt employees is essential, especially when employees are working away from upper management. Exempt employees must perform their primary duties to maintain their exempt status.
Non-exempt employees are those that are paid on an hourly basis and are eligible for overtime pay. Employers must pay non-exempt employees the hours that they have worked. If a non-exempt employee does not work, the employer is under no obligation to pay. If non-exempt employees are called upon to work extended hours as a result of the COVID-19 emergency, employers may be required to provide extra overtime pay.
Even more so than with exempt employees, monitoring the hours of work completed by non-exempt employees is important because it can affect overtime pay and other benefits.
Employers must ensure that the same accommodations afforded to any employees with existing disabilities still exist when working from home. For example, if an employee has a disability that requires extended breaks, those considerations must be implemented even though the employee is no longer working in the office.
As more businesses adapt their platforms online, accommodations should be made for employees with vision or hearing disabilities.
The federal Equal Employment Opportunity Commission (EEOC) requires an employer to make “reasonable accommodations” for a disabled employee, including:
- Modifying work schedules and policies,
- Providing qualified readers or sign language interpreters, and
- Providing devices or modifying equipment.
The EEOC ensures that employees with disabilities are able to work just like their co-workers.
Business Expenses and Tax Considerations
Employees may be able to claim their home office as a tax deduction as a result of mandated work-from-home policies. An employee may request a home office deduction if required by your employer and the employer pays no rent to the employee.
If challenged by the IRS, the employee is required to show documentation that the employer required the employee to work from home. The home office of the employee must be exclusively used for work with no personal use at any time during the tax year.
If an employer requires an employee to work remotely due to COVID-19, they may wish to consider reimbursing the employee for any new phone, internet, or other expenses incurred, if the additions permit the employee to telecommute successfully. However, they are not required to do so.
By contrast, if a non-exempt employee is required to work from home, employers may not require the employee to pay for business expenses if the expense reduces the non-exempt employee’s wages below minimum wage.
Employers are not permitted to deduct the costs for phone, internet, or other expenses from an exempt employee salary under the Fair Labor Standards Act.
Employers may wish to outline the specific expenses which will be deemed reimbursable as related to the requirement to work from home. A clear policy provides detailed guidance for both employers and employees as to what types of reimbursements will be permitted and the procedure for reimbursement requests.
In the time of COVID-19, businesses have been forced to adapt and change the workplace landscape to which they are accustomed. There are many factors to consider to ensure a smooth transition in managing employees working from home and continuing to fulfill all legal obligations as an employer.
If you have implemented or need help implementing a precise work from home policy for your business, contact the experienced and professional attorneys at BrewerLong. The experienced employment lawyers at BrewerLong work exclusively for employers.
In the uncertain time of COVID-19, our main focus for our clients is maintaining productivity for the survival of their business. Contact us today!
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