CLOSING ENTRY: Getting it right

The COVID-19 pandemic has required employers to make significant adjustments regarding their day-to-day business operations. One of the more significant adjustments is permitting employees to work remotely or rotate between working from a location out of the office and in the workplace. For employers that opt to implement such arrangements, it is imperative to have a written policy in place that sets forth the parameters of the terms and conditions for the remote work. The following items should be included in a written remote work policy.

Anti-discrimination, harassment and retaliation: All employers are required to prohibit discrimination, retaliation and harassment against employees based on classifications protected by applicable law, including but not limited to, race, gender, national origin, age, pregnancy, sexual orientation, and disability. When formulating and administering a remote work policy, employers need to be cognizant of treating their employees in protected categories in a disparate manner. For example, if an employer decreases compensation for a remote employee who is in a protected category recognized under the law, then the pay decrease may be construed as an adverse employment action depending on the facts.

In addition, employers have a duty to engage in dialogue with their employees to explore potential accommodations due to disabilities or religious affiliation that may help the employee perform the essential functions of the job. Accordingly, employers need to be flexible with remote employees who make any religious or disability-based accommodation requests.

Therefore, a remote work policy should include express language that the employer prohibits discrimination, retaliation or harassment against any employees working remotely. Further, the policy should direct employees to whom within the company any religious or disability-based accommodation requests should be made.

Eligibility: Depending on the nature of the employer’s business as well as the employee’s job functions, an employer may not be able to make all of its employees eligible for remote work. Therefore, a remote work policy should include objective eligibility criteria such as job duties or years of service with the employer.

Compliance with existing company policies: Employers need to advise remote work employees that they still must adhere to all existing company policies, such as any anti-discrimination and harassment, and protection of confidential and propriety information policies. Therefore, the remote work policy should make clear that all existing company policies still apply to employees who are working remotely.

Set work expectations: A legitimate concern for employers about instituting a remote work policy is the potential for lack of employee productivity. Employees need to understand that they are held to the same work expectations as if they were in-person at the workplace. Accordingly, the remote work policy should make clear that employees need to be accessible during regular work hours and that employees must follow their normal work schedules.

Communication: Generally speaking, an employee’s lack of responsiveness may lead to dissatisfaction from management and clients. Remote work employees must understand that they are expected to have the same level of responsiveness as if they were in the workplace. Thus, it is important for the policy to make clear that remote work employees must be responsive to communications from management, co-workers and clients.

Equipment: Depending on the nature of the employee’s job duties, necessary equipment, such as laptops, routers or modems, and phones must be provided. The policy should stipulate what equipment, if any, will be supplied by the employer, as well as clarify that this equipment is only to be used for business purposes. Conversely, the policy should also state what equipment, if any, must be provided by the employee and should make clear that the employer is not liable for any damage to equipment maintained by the employee.

Protection of confidential and proprietary information: Given the increased opportunities for job mobility in today’s COVID-19 pandemic economy, it has become even more important for employers to protect their confidential and propriety information that is shared with their employees. To that end, the policy should state that remote employees are expected to protect confidential and proprietary information belonging to the employer and take safety measures to protect such information, including the use of locked file cabinets and desks, and regular password maintenance.

Workplace safety: Workplace safety requirements still apply to remote work employees. Injuries sustained while working remotely may be covered by the employer’s workers’ compensation policy. Accordingly, the policy should state that employees are expected to maintain their remote workplace in a safe manner that is free from hazards.

Compensation: To avoid potential liability, employers should not set salary based solely on whether an employee works remotely. Therefore, the policy should state that there will be no changes to employee salaries for working remotely. Any salary adjustments should be made in accord with the employer’s regular course of business.

The pandemic changed the way employers do business. Part of that change is having the flexibility to offer remote or hybrid work arrangements. To limit potential employer liability, it is important for employers to have a comprehensive written remote work policy in place that expressly states the terms and conditions of the remote workplace.

Frank Custode is a partner at Curcio Mirzaian Sirot LLC in Roseland and chairs the firm’s Employment Practice.