It goes without saying that the world has changed drastically in the past three years.
At the onset of the COVID-19 pandemic, the majority of the population was working from home, socially distancing themselves from others, and spending their spare time washing their groceries and binging television shows in the evenings.
With the World Health Organization recently announcing an end to the global health emergency, it seems as though the pandemic is finally in the rearview mirror. But while grocery washing and “Tiger King” may no longer be popular, the ability to work from home remains an employee demand.
The pandemic revealed that many employees enjoy the flexibility of working from home. Many employers have kept their once in-person employees remote, realizing their employees could perform their jobs seamlessly from home, thus removing the expense of leasing office space.
Asking employees to return to in-person work has caused, in some workplaces, issues with employee morale and retention, thereby forcing many employers to maintain fully remote positions or adopt a hybrid policy that allows employees to split their time between the office and home.
According to The New York Times, researchers at Stanford University, along with the U.S. Census Bureau’s household survey, revealed that telework accounts for 27% of paid fulltime workdays in the U.S.[1] Additionally, 12.2% of job postings now mention the ability to work from home, four times more since before the pandemic.
This points only to one conclusion: Remote work is here to stay.
Knowing this, employers implementing any sort of remote working arrangement should make sure their handbooks have an updated remote work policy in place. A remote work policy should clearly lay out the expectations of the remote working arrangement for both the employee and the employer.
Employers should consider the following when drafting their remote work policies.
Outline eligibility to work from home.
An employer’s remote work policy should expressly state how an employee becomes eligible to work from home.
For example, if only specific positions are eligible to be performed from home, then the policy should clearly state so. If employees are able to work from home on specific occasions — such as in the event of a power outage, weather event or another pandemic — the policy should provide those circumstances.
If employees are only eligible to work from home after they have been employed for a specific period of time, as an employee perk, the policy should articulate the requirements to be eligible to work from home.
Failing to expressly state eligibility requirements can not only lead to confusion among employees, but may also lead to claims of discrimination if an employee is denied the ability to work remotely.
Providing written guidance to employees outlining the positions, occasions or requirements to work from home allows an employer to point to concrete evidence to justify a decision to approve or deny an employee’s request to work from home.
Require employees to provide advance notice if moving out of state.
The employer should be aware of where the employee is primarily working. Many employment laws, such as the laws governing workers’ compensation, are based on the location where the work is performed.
Therefore, if an employer is based in one state, but the employee is working remotely in another state and is injured while working remotely, the laws governing workers’ compensation in the employee’s state would likely apply, instead of the state where the employer is located.
Likewise, wage and hour laws are based on the location of the employee, rather than the employer. Unknowingly having employees located throughout the U.S. can create a myriad of issues for an employer.
Thus, it is important for the employer to know where the employee is working remotely. Include a provision in the remote work policy obligating the employee to provide advance notice if the employee moves while working a remote position.
Define work expectations.
A concern for any employer when allowing employees to work from home is making sure employees remain productive.
The remote work policy should emphasize that all employment policies in place, including those applying to performance and attendance, still apply when working from home. If the employee is required to work specific set hours during the day, the policy should so state.
Also, the policy should reiterate that the employer has the discretion to revoke the remote working arrangement in the event the employee is failing to perform their duties. Notwithstanding, employers should refrain from trying to micromanage the employee.
If the employer sees a performance decline since the employee has moved to teleworking, the employer needs to address the issue immediately with the employee. If performance continues to be an issue, the employer may consider revoking the remote working arrangement for the employee.
Consider cybersecurity and data breach risks.
With cyberattacks and data breaches on the rise, employers should be cautious about their employee’s use and access to company information while working remotely.
Specifically, the remote work policy should specify all cybersecurity protocols to protect the employer’s confidential information and trade secrets and outline the equipment requirements for employees to work from home.
Additionally, employers may want to ensure that their employees working remotely are doing so from a private location as opposed to a location where any nonemployee may easily view confidential information on the employee’s computer screen. To do so, the policy can include a prohibition on working remotely from a public setting, such as a coffee shop or coworking space.
Require acknowledgment of receipt for the remote work policy.
To ensure the employee has received, and hopefully read and understood, their employer’s remote work policy, employers should ask the employee to sign an acknowledgment of receipt and understanding of the policy. This acknowledgment should be kept in the employee’s personnel file.
Written remote work policies help everyone.
Like it or not, remote work policies are here to stay for the foreseeable future. And in a world where employee retention remains a concern for most employers, employers may want to consider offering remote work or a hybrid work arrangement to their workforce. In either circumstance, employers should have a written remote work policy.
Having a clear remote work policy in place that outlines eligibility, requirements and work expectations provides not only guidance for employees, but some peace of mind for employers concerned about employee performance and conduct when they are not able to see them on a daily basis.
This article originally appeared in Law360‘s Employment Authority as an Expert Analysis.
[1] https://www.nytimes.com/2023/03/30/business/economy/remote-work-measuresurveys.html.
