Not by choice for most, 2020 is the year of remote work. As a result, many employers and employees are thinking about what remote work looks like even after everybody is comfortable going back to the office. The concept of remote work is hardly new, but many people feel that the last six months have shown that, in many businesses, remote work is a better option than it was thought to be and that it’s time for an employer to have a policy about that.
Here are nine things I tell employers to think about when crafting such a policy:
1. After COVID, what do you want to do anyway? While many of us feel that remote work has proven itself in many contexts, plenty of people still feel strongly that people need to be in the office, every day. Don’t invest your time and get people’s hopes up for changes until you know your stakeholders are on board.
2. Won’t there be increased liability? Of course talk to your lawyer about this one but, generally speaking, I do not think employers will find greatly heightened liability risks with people working from home. Certainly there are many valid concerns – e.g., tracking the time of non-exempt employees, workers’ comp claims in an environment the employer does not control, and information security. But generally I think most of these will prove to be manageable.
3. How detailed does your policy need to be? I have written here before that employers often tend to “over legislate” in policies, not sufficiently accounting for the inherently unpredictable nature of human behavior and life situations. Doing so can put an employer in a position to be accused of inadvertently “violating” its own rules. A remote work policy definitely presents that risk. Don’t try to anticipate every little thing; you can’t. Some general rules and preserving the employer’s absolute discretion to approve, disapprove, modify, or end remote work arrangements may be all you need. (Again, talk to your lawyer about this. The policy you grab off the internet may or may not serve your interests.)
4. Who is eligible? Some eligibility thresholds may be a good way to weed out potential problems. Requiring six months or more of employment before being eligible seems like a good idea for many employers. Some employers may take the approach that you cannot go remote if you are currently on a performance improvement plan or have had a warning of any sort with the last year. Mindful of item three (i.e. leave yourself room to operate), it may be advisable to highlight some key skills the company will look for in considering remote work requests – e.g. demonstrated time management skills.
5. How and when does a remote work arrangement end? This should be easy in virtually all situations – whenever the employer says so! Of course, good employers will be reasonable and communicative and give reasonable notice because that’s how you attract and keep good employees, but there are few situations where I would recommend any other answer to this question in a policy.
6. What about workplace safety? As noted above, this is a fair concern since an employer does not control the space. I generally like a policy to say that the employee has the responsibility to provide a safe workspace, and the employer has the right to full information about the space and even the right to inspect it (though OSHA does not expect the employer to do so).
Of course employers should use good sense as they interact with remote employees. If you see something in the background on your video call that causes a safety concern, address it!
7. Who is paying for what? It may be appropriate to set forth some expectations in your policy about expenses – printer supplies, duplicate technology, etc. Some states (not Ohio) may have laws about reimbursement of business expenses that warrant a look with your lawyer to make sure you are in compliance.
8. Do our usual workplace policies apply? You bet! But it’s probably a good idea to say so, and to reference that that “includes but is not limited” to workplace harassment, social media usage, and data security and other polices an employer finds especially relevant.
Generally I do not think it’s advisable to reiterate in your remote work policy policies that are already written elsewhere. That can be confusing; just make it clear that the employer is still “at work” even when working remotely.
9. Do you need a remote work agreement? Legally, no. It is important to remember that is not a new contractual arrangement with an employee in most cases. Rather, it is a matter of employer policy. That said, if you want something in writing to underscore that it is an important commitment or you just like having something signed in your file, that’s not usually concerning to me.
Surely this will be a hot topic for the foreseeable future, and the right answer will be different for every employer, but this list should get you started thinking about key issues for your business.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.
