For prior coverage from the Chapman Firm on what businesses need to know about the Families First Coronavirus Response Act, please read our overview of the Act and our FAQs on Expanded FMLA and Emergency Paid Sick Leave.
As more and more state and local officials implement strict stay-at-home/shelter-in-place orders, many employers and workers are settling into their new norm of social distancing and, if possible, remote working. While it is critical that employers offer as much flexibility as possible to their workers, companies should set out in writing expectations around any temporary telework arrangement they might implement. Below are some key points for employers to keep in mind when implementing a telework policy:
Be Clear About Performance Expectations: Employers should be clear with their employees that a temporary work-from-home arrangement is just that, temporary. It’s important for management to send the message that they understand that employees might not be able to perform all of their essential functions during a temporary period of remote work, but expect employees to perform as best they can in light of the temporary arrangement. This kind of message has two benefits: it shows employees that you recognize (and won’t reprimand employees for) a performance dip in the short term and it protects employers from claims that on-site attendance is not an essential function of the job when employees are asked to return to the office.
Encourage good faith efforts: Advise employees that a temporary telework arrangement requires the coordination and good faith efforts of the employee and the business in order to be successful. Encourage employees to contact their supervisors if they need additional materials or technology to best work remotely and be sure to provide supervisors with appropriate guidance on handling such requests.
Make clear that the arrangement can be changed at any time: Remind employees that the telework arrangement can be changed or altered at any time for any reason. It should state something along the lines of: “[Company] takes the health and safety of its workforce seriously and will make reasonable efforts to ensure locations are safe for employees to return to work when stay-at-home orders are lifted. Requiring employees to come into the office when this telework policy expires does not change the job, nor does it constitute constructive discharge. Employees must at all times be flexible and able to return to the workplace with reasonable notice from management.”
Ensure company equipment remains company equipment: Make it clear that equipment provided by the company is to be used for business purposes only. The employee should sign a document spelling out which company property is being used and agree to take action to protect the property. Administratively, employers should also ensure they are keeping track of any and all company equipment distributed for home use.
Remind employees about confidentiality of work: Teleworking employees should ensure the protection of proprietary company and customer information accessible from their home office. Part of this effort may take the form of internal IT support to ensure company information remains encrypted during remote access, but employees should be reminded of any existing confidentiality policies and otherwise be reminded that company information should not be shared with third-parties. This is especially true where many employees will be home with children, significant others, and roommates who would not otherwise be privy to company information.
Continue policy compliance: Those with a telework arrangements must still comply with all applicable company policies, including those contained in any employee handbook or policy manual and those implemented in addition to any handbook. That would include, for instance, prohibiting a teleworker from engaging in sexually explicit or discriminatory communications while working remotely or otherwise improperly using business computers and phones for personal reasons. The more casual atmosphere of the home office does not mean the professionalism of the work environment is similarly relaxed.
Create safe work environments: Employees need to designate a specific work area and agree that the work environment is safe and free from known hazards. Employers need to be aware (and remind employees) that injuries suffered by the employee while at a home work location that arise during the course of employment and in conjunction with regular work duties may be covered by the company’s workers’ compensation policy. Employees should be encouraged to create a safe working environment for themselves – especially where the employer has limited control over home office setup given the speed with which these telework arrangements might need to be implemented.
Set work schedules and communicate ongoing tasks: Employees should maintain a work schedule or the telework policy should set some standard for working time. Employees should agree to be accessible by phone or email within a reasonable time period during the agreed-upon work schedule. Once set, regular attendance should remain an essential function of the job. Setting regularly scheduled team meetings/conference calls can help ensure employees remain present and accountable while working from home. Likewise, supervisors should establish clear communications methods and progress reporting methods for subordinates to check in on tasks to be accomplished daily or weekly.
Make sure time records are kept: Non-exempt employees (those who are not exempt from the overtime requirements of the Fair Labor Standards Act) must be required to record all hours worked in a manner designated by the company. Entering accurate time for all working hours is critical to the success of the telecommuting arrangement. Businesses that use third-party payroll vendors should check with their account representatives about web-based tools that teleworking employees may use for time tracking.
Be empathetic about child care obligations but be clear about expectations: Telework is not designed to be a replacement for child care. However, during these unusual circumstances, employers should be as empathetic and flexible as possible about performance expectations while employees are also handling child care issues. For those employers providing Expanded FMLA and Emergency Paid Sick Leave to their employees under the new Families First Coronavirus Response Act, remain aware that employees taking family or medical leave should not be working at all during such leave, but once those employees are ‘back to work,’ they must be aware that the telework policy guidance above is still in effect.
For additional guidance or questions about preparing your workplace for telework arrangements or any other employment law questions, contact The Chapman Firm.