Before the COVID-19 pandemic, most employers were reluctant to allow employees to work from home on a continuous basis. Many companies prohibited all teleworking or allowed employees only to work remotely when recovering from an illness or when required as a reasonable accommodation. When COVID-19 hit, many employees began working remotely and it appears that working from home is now, for many employees, a permanent situation. I, myself, have seen the advantages of working from home although I miss the collegiality and professional dialogue with other attorneys in my firm.
It has been estimated that about half of employed adults are currently working from home. Job applicants have indicated that they place a high value on the ability to work from home. Flexible scheduling is a significant perk that younger workers prefer, even more than a higher salary.
Many employers developed written policies regarding teleworking once it became clear that employees would be working from home for some period of time. Other employers, thinking that remote working was a temporary situation, do not have written policies on teleworking but instead issue periodic directives, instructions, and procedures to employees who are working from home.
Key Elements of a Teleworking Policy
If an employer expects that all or a segment of its employees will continue to be working from home, even after the pandemic ends, it may be time to consider developing a teleworking policy. Although allowing employees to work from home may retain or attract employees, the ability to work outside the office can also create nightmares for an employer. Whether employees work full-time from home or partially work from home, it is important that employers and employees have the same expectations as to productivity, communications, and compliance with company policies. Below I have highlighted some key elements of a telecommuting policy:
- Specify what positions are eligible to work from home. Identify those persons responsible for making the decisions as to whether particular employees or positions can work remotely and how often the employees can work remotely (i.e. how many days per week).
- Identify the expectations and requirements for employees who will be working remotely. Are employees expected to participate in any meetings in the office? Do they have flexibility in their work hours? How often do they need to communicate with their supervisors? Employers may have concerns about the diligence and reliability of employees who work from home, so the expectations need to be clearly stated. It may be appropriate to remind employees that when they are participating in video meetings, such as Zoom or Teams meetings, they need to dress appropriately. How many of us have seen others in Zoom meetings wearing pajamas, sweatshirts or other clothing that they would never wear to an in-person meeting involving the same people as those in the Zoom meeting?
- Discuss expected communications protocols. Employees should be told when they are expected to be available for telephone conferences, video meetings and other group confabs. Should employees regularly check-in? Should employees inform their supervisors when they are ready to start their day at their computer? Will employees have to list the specific tasks they will complete or have completed during the day or during the week?
- Discuss the equipment which an employee will need for their work and who will provide it. The policy should describe what equipment and supplies the employer will be providing versus the employee, and if provided by the employee, whether the employer will be reimbursing the employee for these supplies and equipment. Explain what personal use an employee can make of equipment which is provided by the employer, such as a printer and scanner. Outline the accepted use of a personal device and if or when it is acceptable to download or access company files on a personal device.
- Security is a critical element of the arrangement for an employee to work from home. Firstly, if employees are accessing a company network or other confidential information, what procedures must they follow from their home office to ensure the security of company networks and communications. Will the company be providing a shredder or is it up to the employee to discard paper generated during the workday? What safeguards should the employees be setting up against potential hacks, breaches or theft? The policy should describe the need to password protect all devices used for work purposes.
- Expectations of work hours. Many employees working remotely have children at home because their daycare or schools are closed. How much flexibility will employees have to extend their work hours to accommodate taking care of their children, or assisting their children with schoolwork? Are there specific hours during which employees must be working? How do employees keep track of the hours they work?
- Consequences of abuse of the policy. The policy should state that employees can be disciplined for violation of the teleworking policy or any other company policy while working remotely. At some point, an employer may decide to withdraw an employee’s right to work remotely because that employee has been abusing the privilege of working from home.
Workers Compensation and Remote Workers
Employees who are injured while working at home may be covered by the employer’s workers compensation insurance. Over 10 years ago, the Minnesota Workers Compensation Court of Appeals considered the question of whether an employee’s injury while working at home was covered by the employer’s workers compensation insurance. The employee was taking a short break from his computer to get a cup of coffee. While he was walking down the stairs, he slipped and landed on his back on the steps. He suffered a fracture of his T9 vertebra and eventually required surgery. The employee filed a claim for workers compensation insurance alleging that his fall arose out of and in the course of his employment. The employer and insurer disputed the employee’s claim. The Workers Compensation Court of Appeals held that when he left his home office to go to the kitchen for a cup of coffee, the employee was no different from an employee who, while working at the office, goes to a kitchen for a cup of coffee. The court found that the injury arose out of the employee’s employment and therefore was covered by workers compensation insurance.
To possibly control workers compensation liability for remote workers, an employer should consider establishing guidelines for a home office such as requiring a designated work area and provide training related to setting up a workstation and appropriate safety measures. When feasible, conduct periodic checks of employee home offices to identify and eliminate work area safety hazards. This suggestion may not make sense for many, if not most employers, but companies should understand that an injury because of hazardous conditions in an employee’s home may be covered by workers compensation insurance. Consider setting fixed work hours and meal and rest periods for telecommuters. This may help establish whether an injury was “in the course of employment.”
If an employer has a written teleworking policy, the employer should periodically discuss with supervisors and managers whether the teleworking policy is effective and whether it is addressing all issues that arise when employees are working from home. Employers should also check with the remote employees to discuss how isolated they may feel from the rest of the company, whether they feel they are working at their most effective and efficient level and what adjustments may be appropriate for their schedule and/or in the teleworking policy. Employers should consult with their attorneys to ensure that their teleworking policy complies with all state and federal requirements.