Remote work considerations as the workforce enters a new era

The work environment has changed dramatically over the past four months. Although many have jobs that require them to be physically present at the worksite, e.g., manufacturing, food service and delivery personnel, many also have been able to successfully navigate the sudden “work from home” mandates quite effectively.

As the country begins to reopen, employers that have operated remotely for months now have more options than ever when it comes to how their offices will reopen and what the future of their “worksite” will look like. These considerations go beyond the current COVID-19 restrictions placed on businesses and assess what employers should consider as they make decisions impacting their workforce far into the future as well.

Practical considerations

Hiring: A savvy employer whose staff has been remote for months on end cannot overlook the fact that many people have grown accustomed to working remotely, and frankly, prefer it. A flexible attitude towards working from home will likely impact a business’s ability to competitively recruit talent and retain talent in the future.

In addition, and especially for employers that operate in markets or industries with limited talent pools, the ability to work remotely expands where an employee can work from. Suddenly, hiring someone outside a commutable distance is not only possible but increases the potential talent pool.

Cost savings: As many businesses discovered these past few months, with employees at home, the cost of office space is a huge portion of their bottom line and one that simply might not be worth the expense going forward.

Many companies are now utilizing this time to be creative with their workforce and strategically plan what the “new normal” will be for remote work while also saving on their bottom line. Perhaps more businesses will stay entirely remote, or a hybrid involving a rotating work from home and in the office schedule. Either way, commercial office space will undoubtedly be reevaluated as a “need” for many businesses going forward.

And, it’s not just the cost savings for employers, but also employees. Individuals who work from home even part of the time will save on commuting and parking costs and gain hours in their day that would otherwise be spent in a car or on a bus.

Legal considerations

Security: Any employee with remote access to company equipment, or to whom company equipment is lent, is a possible risk to an employer’s IT security, intellectual property and confidential information. Every employer must weigh the pros and cons of permitting, or even requiring, employees to work remotely. At a minimum, employers that provide or require remote work should establish specific policies and procedures to work from home, which address security and confidentiality of company information.

There are also technological advancements that companies should consider to minimize a possible network breach, review information being received and sent by employees, and to immediately cut off network access to an employee who has been terminated.

Any company utilizing remote work should consult with experienced IT professionals and legal counsel in order to protect what are typically a company’s most valuable assets, its confidential information and intellectual property. The experienced employment attorneys at Carlile Patchen & Murphy LLP can look at your current security policies to make sure you are protected.

Wage and hour: All employers must make sure that valid time records are kept for employees who are not exempt from the overtime/minimum wage requirements of the Fair Labor Standards Act (FLSA) and its state counterparts. This can be tricky for any employer, but when non-exempt employees are working remotely, the FLSA’s requirements pose new challenges. Employees should completely understand, through written and reviewed policies, that they must keep and submit accurate time records that reflect time spent working.

However, if an employer becomes aware of an employee who appears to be working “off the clock”, e.g., responding to emails at odd hours or logged into the employer’s network in excess of their time records, the employer must investigate to determine whether or not such work is being compensated properly. And, to possibly enforce policies prohibiting employees from performing any work-related tasks outside of hours during which they report working.

Workers’ compensation: What happens when an employee who works remotely becomes injured while “on the job”? In Ohio, a remote employee is of course still an employee for whom workers’ compensation coverage must be provided. Of course, an employee alleging a work-related injury or illness must be able to show that the injury or illness occurred through the course and scope of their employment, but simply being a remote worker does not obviate the employee from participating in the workers’ compensation system and receiving benefits.

As part of an employer’s work from home policies, an employer should define where exactly the employee will be working remotely, e.g., at their home office, in order to limit the success of claims involving locations that do not appear to be work-related. Carlile Patchen & Murphy LLP attorneys can provide employers practical advice on workplace safety protocol and other human resources issues.

Reasonable accommodation: Although many employers will expand their remote work capabilities in the future, some companies may not view this as a viable option for their workforce. To that end, employers may adopt policies prohibiting remote work and keep the office environment as it was, pre-COVID. That is of course the option of every business, when not otherwise required to comply with government mandates as we’ve seen the past few months.

However, the ability to work remotely may, and inevitably often does, become a request an employer must respond to from an employee experiencing a disabling health condition. The Americans with Disabilities Act and state counterparts typically require an employer to engage an employee making such a request in an “interactive process” that will enable the employer and employee to resolve such requests and allow the employee to continue to perform the essential functions of their job.

In the pre-COVID era, working remotely was not always a reasonable accommodation, depending on the facts and circumstances of the employee’s request. Now that many businesses have successfully functioned outside the office for months at a time now, it will be more difficult for employers who are unwilling to grant a “work from home” request to defend that decision and prove it to either be an undue hardship to the employer or that the employee would be unable to perform the essential functions of their job remotely.

Employers need, now more than ever, to be responsive to such requests and truly engage with employees who make them to find a solution that may be a continued remote work environment for that particular employee. The employment attorneys at Carlile Patchen & Murphy LLP can work with you to update your reasonable accommodation policies to ensure you are compliant and help you assess requests as they are made.

For over 50 years, Carlile Patchen & Murphy LLP (CPM) has been providing legal excellence to businesses, families and individuals. They value building long-lasting relationships with their clients and are dedicated to protecting and preserving what is important to you. Their attorneys offer expertise in the areas of Banking & Finance, Business Law, Employment, Family Wealth & Estate Planning, Insurance, Intellectual Property, Litigation, Municipal, Non-Profit Services, Probate, Real Estate, Securities and Taxation. CPM is located at 950 Goodale Boulevard, Suite 200, Columbus, Ohio 43212. They also operate a second location in Dublin.