During COVID-19, some businesses have been able to convert the traditional workspace to allow for social distancing – but not every office could do so. The Department of Labor has been encouraging employers to facilitate working from home where it’s possible. That’s been an excellent solution to a very contagious virus, but it’s caused some issues concerning employment law issues.
Here the legal experts at Shuman Legal take a look at how to handle some of the most common employment law issues, but it’s vital to check with professionals within your locale for any relevant legislation. The situation with lockdowns and other restrictions is dynamic, so advice will vary not just based on location, but also rates of infection. Stay informed and up to date.
Avoiding discrimination and accommodations for remote workers with disabilities
An increase in remote working during COVID-19 hasn’t altered any of the legislation around discrimination in the workplace, and you must do everything you can as an employer to comply. For example, requesting that your employees work from home should be consistent across the workforce and not based on any disability they have. Here’s the U.S. Equal Employment Opportunity Commission’s advice about working at home and telework.
When employees with disabilities are to work from home, you must ensure that technology and equipment get provided to ensure they’re not placed at any disadvantage when compared to their colleagues. The workspace should be made suitable for their needs, as well as the tasks they will perform there.
- Employers may need to enable physical changes in the work at home environment, such as installing ramps or changing a layout to make working from home more viable.
- Provide accessible or assistive technology to allow workers with disabilities to function productively.
- Video calling software or equipment may be needed where workers are deaf or hearing-impeded.
- For blind or partially-sighted employees, it may be necessary to produce large-print documents or make material available in Braille.
- The work-at-home schedule may need to be adjusted to accommodate medical appointments.
The Office of Disability Employment Policy advises employers to refer to the Americans with Disabilities Act when ensuring employees with disabilities get afforded reasonable accommodation concerning their work environment.
Monitoring your regular HR policies on discrimination and harassment might prove difficult with all or many of your employees working remotely. However, the pandemic hasn’t changed any of the laws regarding that, so it’s also important to look at your policies and adapt them to suit the situation. You have a duty of care to employees who may be stressed and anxious about working from home, regardless of the pandemic.
Expenses for employees working remotely
Rules on this vary from state-to-state, but you must check whether you’re required to cover your employee’s expenses while they’re working at home. Workers may incur several types of extra cost at this time. They may need to upgrade computer equipment or software, and their existing internet arrangements might not suffice for work. Here’s what the U.S. Department of Labor Wage and Hour Division has to say on the matter.
Not all employees may have the appropriate bandwidth for video conferencing. In healthcare, for example, the move to telehealth consultations during COVID-19 has seen many employees need an upgraded internet connection in order to cope. Practitioners such as therapists, doctors, and anyone turning to video conferences or consultations during the pandemic could incur particularly significant expenses. Self-employed workers get certain tax benefits connected with that, but employees won’t necessarily be able to claim in the same way.
Working from home and accounting for working hours
Work/life balance was a thing before the pandemic, and some employers had already offered flexible conditions to workers. Some of those arrangements got based on trust, with employees left to divide and account for their time between domestic and work duties – fulfilling their contractual obligations around childcare and other homely tasks. It’s a similar deal for some employees working from home during COVID-19, but that can’t be the case for non-exempt workers.
Non-exempt employees working from home must do so with a formal arrangement in place. You’ll need to adhere to the appropriate hour and wage legislation and record time formally. It’s up to you how you accomplish that, and several options exist:
- Use electronic systems to record hours worked
- Employees can update spreadsheets which record working time
- You can base ‘clocking on and off’ on email login and logout times
It’s your duty as an employer to remind non-exempt employees about the policy on unauthorized overtime. It’s a good idea to pay close attention to that while non-exempt employees are working remotely – because that environment poses a higher risk of it occurring accidentally.
Hiring, firing, and discipline during the pandemic
Aside from remote working, the pandemic also raises some challenges when it comes to recruitment. That’s going to be of particular concern when you’re trying to comply with I-9 rules – but there are solutions. You’ll normally need to vet an employee to meet the requirements, but that’s not the case during COVID-19. Temporary measures are in place to allow for compliance while social distancing and so much remote working are happening.
It’s not just hiring – firing also poses specific difficulties during the pandemic – as does discipline and the redeployment of workers when they’re not on site. We won’t be covering this complex area in this article because the situation is changing rapidly and continuously, but you can read more about it here.
Security in the remote office
Data protection and privacy are a big concern for businesses in 2020 – and COVID-19 has done nothing to change that. However, you’ll need to make sure you continue to meet your legislative obligations during the pandemic with people working from home.
Under such conditions, you may find policies and IT practices need to be tweaked to meet demand. Workers may be using personal laptops or modems, and even their phones for work — that can all have security implications. You’ll need to keep employees up to speed on security policy and hand over any personal devices to be secured by your IT department.
If in doubt, get some advice
The pandemic has raised many employment law questions for a whole host of employers. Legislation changes from state to state. Re-openings differ from industry to industry, various legislation applies in a range of sectors, and there’s no single way to handle remote workers. If you’re looking for guidance, it’s a great idea to talk to a local firm with employment law experience.
Marc Shuman is the founder of Shuman Legal, a Chicago, Illinois based law firm. He is an active member of the American Bar Association and the Illinois Workers Compensation Lawyers Association (IWCLA). He has a passion for helping injured victims get the compensation they deserve.