Adapt Your Business With These HR Changes For Remote Workers
Remote work is quickly becoming a sought-after job perk that is relatively inexpensive to implement. With 23 percent of the workforce willing to take a pay cut for the privilege of working remotely, your remote work policy will help you attract and retain high-quality talent during The Great Resignation. And let’s not forget about the savings your company will enjoy—about $11,000, per remote employee.
But before you tear down those cubicle walls, consider the HR challenges associated with implementing a remote work policy. Much of the employment law that applies to remote work was written decades ago, long before the internet made a mass exodus to home offices possible. As an employer adopting a remote work policy, you’re treading into territory lawmakers and agencies haven’t quite finished charting.
State and Local Laws
Lawmakers have been especially lax in updating their corporate tax laws to reflect the growing movement toward remote work. Under existing laws in some states, employers may inadvertently open themselves to additional tax burdens if only one of their remote employees moves to that state. For example, in 2012, a software company was forced to pay a franchise tax because a developer worked remotely in that state. To add to the confusion, federal law may prevent a state from charging your company additional taxes if the remote employee’s role meets certain criteria.
Your HR department will also need to be aware of other employment laws in the state in which a remote employee lives. Issues related to discrimination, harassment, protected leave and safety will be governed by laws in the state in which your employee lives. For example, an employee who lives in Oregon will be entitled to paid family leave even if your business is headquartered in another state.
Workers Compensation for Remote Employees
Having a remote workforce won’t absolve you from responsibility if your employee is injured on the job. And it won’t necessarily make it less likely that an injury will occur. Employers are still responsible for any injury that occurs while an employee is performing work duties.
Injuries associated with remote work may occur when ergonomic furniture isn’t available. Telecommuting employees working at the kitchen table may suffer from back and neck injuries. Those working long hours on their computer may develop any number of repetitive-use injuries.
Your liability may also spill into unexpected terrain. For example, an employee may have a legitimate claim for a slip and fall injury if the injury occurred in her designated home office. Remote employees may also be exempt from the “Coming and Going Rule,” meaning they may be eligible for workers’ compensation if they are injured in a car accident while traveling between their home and your place of business.
When your remote workers move to another state, you may be required to purchase workers’ compensation in that state. Your workers’ compensation insurance company will be able to tell you if the state in which you need coverage has a reciprocity agreement with your home state. If not, you’ll need another policy.
Wage and Hour Issues of Remote Work
When non-exempt employees came to the office, it was somewhat easy to ensure you paid them for all time worked and, thus, comply with Fair Labor Standards Act. FLSA gets a little trickier for non-exempt remote workers. Fortunately, the U.S. Department of Labor issued some guidance during the pandemic. The guidance offers some comfort to companies struggling to track hours worked without the aid of a timecard or the ability to push non-exempt employees out the door at quitting time.
Essentially, all your current obligations—and penalties—remain the same when your non-exempt employees telecommute. Employers must establish a system with which remote employees can report all time worked. And, of course, you must pay these employees overtime, as needed.
But how can employers prevent their non-exempt employees from working while they are at home? Afterall, the FLSA states that “the employer bears the burden of preventing work when it is not desired.” Here, the DOL addressed employers’ dilemma of being unable to directly supervise non-exempt employees by making it clear that the employer’s duty to prevent unwanted work is not “unlimited.”
Under these guidelines, employers must provide non-exempt remote employees with a time-tracking system and provide training to use it. They must also be careful to not discourage accurate reporting. Generally speaking, if employers take these steps, they can send their non-exempt employees home to work without the anxiety of violations and penalties.
ADA Accommodations and Remote Work
Even if you decide not to implement a remote work policy, the ADA may require you to allow an employee to work from home as part of reasonable accommodation. Prior to Covid, employers could respond to such requests by making in-office work an essential feature of the job. However, now that millions have demonstrated that in-office isn’t as essential as we all thought, employers have a more stringent burden of proof if they deem in-office work essential.
Specifically, an employer may be able to deny telework as a reasonable accommodation if, during the pandemic, the employer temporarily suspended an essential function of the job during the pandemic. If, however, during the pandemic, an employee was able to perform all the essential functions of the job from home, then teleworking may be a reasonable accommodation.
Thoughtful Remote Work Policy Can Prevent Problems
A well-written remote work policy can prevent many of the above issues. When you craft your policy for telecommuting, make sure to include the following.
- Define eligibility. You can prevent discrimination claims if you have explicit eligibility guidelines for remote work requests.
- Require employees to report relocations. Create clear guidelines for employees considering an out-of-state move.
- Create time reporting procedures. To avoid violating FLSA and incurring fines, create clear procedures and training for non-exempt employees when they report their time worked.
- Consider providing ergonomic equipment. Making sure home offices have some basic safety features will prevent workers’ compensation claims down the road.
- Create communication guidelines. Communication limitations inherent in remote teams can make your company vulnerable to discrimination claims. Additionally, articulating what and when, exactly, you expect employees to communicate to their managers can further prevent problems from escalating.
In addition to creating a thorough remote work policy, review your existing policies and establish the company’s responsibilities as they pertain to your remote workforce. You’ll need to adapt many of these policies and responsibilities for your remote employees. For example, additional protections may be needed to protect your company’s data. Consider also onboarding and termination logistics. Essentially, nearly every aspect of your current HR duties will be impacted by your new remote work policy.
Adapting your business to support your remote workers can be challenging. Contact us for help with your human resources.