During the Coronavirus crisis, federal and state governments want employers to offer their employees the option of telework to promote the goal of social distancing. But what are the best practices for an employer to adopt?
Before allowing telework, you should adopt a management policy, say attorneys Katharine Beattie and Corbin Carter of the Mintz law firm.
They recommend that you have employees review and sign your company’s teleworking policy. It should require employees to accept that the employer has the maximum discretion under law to administer, change, modify or revoke the policy at any time (with or without notice) and clarify whether the policy is meant to be temporary or permanent.
Establish security and oversight. If remote working is not already a standard practice at your organization, make sure to adopt policies governing remote employee access dealing with issues such as network security, protection of corporate confidential information and timekeeping.
Remind employees about existing policies. A written policy should emphasize that employees must continue to abide by all pre-existing workplace policies while teleworking.
Stress that failure to follow existing policies while teleworking may result in disciplinary action, including possible termination of the arrangement.
Make sure that you don’t discriminate. Under the law, the only legal mandate for employers to provide telework as an accommodation relates to disabilities, but other restrictions apply.
Flexible workplace policies should be administered in a non-discriminatory way. An employer should never impose or offer telework based on race, sex, age or any other class that is protected under law.
Make every effort to ensure that the policy is consistently applied to all eligible employees. If teleworking arrangements are granted to some
employees but not to others, you need to be prepared to explain the legitimate, nondiscriminatory grounds for the disparity.
Be aware of the impact on non-exempt workers. Telework programs present particular challenges when it comes to non-exempt workers who are eligible for overtime under the Fair Labor Standards Act and similar state laws, warn Beattie and Carter and other employment lawyers.
Although employers are not required to pay non-exempt workers when a worksite is closed and teleworking is not possible, you can choose to continue paying non-exempt employees for a set period of time, for a set amount or indefinitely.
Clearly communicate to non-exempt employees whether they are permitted to telework and your expectations about timekeeping and schedules.
However, if non-exempt employees are not allowed to telework, explain how the company is addressing the loss of pay. For example, employees could be allowed to use paid time off or an employer could provide a stipend or pay continuation for them.
Subject to collective bargaining agreements, another option is assigning special projects or other assignments that can be completed remotely. Telework-related costs incurred by a non-exempt employee (such as for Internet access and equipment) cannot reduce their earnings below minimum wage and overtime compensation.
“Businesses should continue to monitor the constantly shifting situation closely as it unfolds, recognizing and grappling with the particular issues faced in their local and state jurisdictions,” Beattie and Carter advise.
“In the meantime, employers should explore the viability of telework accommodations, where possible, to support containment efforts and should review, revise or create applicable policies that ensure employees are complying with the business’s needs during the crisis.”
