COVID-19 – Is Your Business Ready for Telecommuters?

The COVID-19 Benefits Environment

Large cities, such as San Diego, Los Angeles, and New York, are shutting down many businesses, including bars, restaurants, museums, libraries, and banning gatherings over 50 lives (and that number is shrinking by the week). Schools closed in San Diego, Los Angeles, New York, Ohio, and Washington, also growing by the week. Inevitably, employees will be forced to telecommute. With telecommuters, varied compliance issues come into play. Is your business ready?

Tips for Telecommuter Readiness

Employee benefits compliance rules are still in play, even if employees are working from home.

Specifically:

HIPAA rules for minimum necessary use of Protected Health Information (PHI), secure device, and physical location where using/disclosing PHI.
Written telecommuter agreement requiring employees to affirm their compliance with company policy and compliance requirements.
Clearly defined rules/expectations in the telecommuting policy.
Consider a crisis or pandemic-specific telecommuting policy.
- Make clear which positions are eligible to work from home.
- Make clear how the employee should request to work from home and how the company will inform employees if they are required to work from home. It is advisable to always have such communications in writing.
- Make clear the return-to-the-physical-work-location protocol.
FMLA / other leave law protocols. How to notify if not able to work from home. How many hours worked (for salary if working one hour they are counted as having worked a day.
Application of ADA laws continue to apply. Reasonable accommodations may be required.
Tools need to work from home: equipment, phones, appropriate security measures. Cyber security is key!
- Ensure updated firewalls.
- Use a Virtual Private Network (VPN), if possible, to provide a direct connection to the company’s network.
- Ensure employee understanding of wireless safety. Avoid public wi-fi. Opt for a wireless hotspot provided by wireless providers.
- Consider encryption or other remote security protections.
- Employ strong password requirements and secure authentication. Multilevel authentication before connecting to the network, if using sensitive information, is recommended.
- Physical security for the area working (for example, ensuring no one can view the work on a laptop if viewing sensitive data should be a requirement).

Considerations should also include:

Reimbursement for home-based equipment or tools and supplies
- Certain states have laws on this subject. Be sure to familiarize yourself.
- The DOL has advised that non-exempt employees working from home may not be required to pay for business expenses where doing so would reduce earnings below minimum wage or overtime compensation.
  - Expenses would include internet, additional phone, as well as other traditional office supplies expenses.
  - Consider a reimbursement policy as part of the telecommuter policy and agreement.
Consider wage & hour guidance for telecommuter pay
- The DOL Wage & Hour Division issued guidance on how to treat varied option for pay during the COVID-19 times.
  - May require salaried, non-exempt employees to use vacation, PTO or unpaid leave, whether a full day or partial day closure. If the employee does not have this available, in order to maintain the exempt status of the employee, the employee must receive full guaranteed salary for any week they perform any work.
  - Consider state laws related to wage and hour.
  - Non-exempt employees should have a telecommuter policy that includes:
    - Expectations for hours worked and overtime.
    - Affirmation of compliance with company policies and procedures, especially related to compliance requirements.
    - How employees will record and report overtime hours.
    - Procedures for communication with supervisors and whether nonexempt employees may respond to calls or emails outside of set working hours defined in the telecommuting agreement.
      - Train supervisors to manage telecommuters.
        Address distractions, time-management, motivation, collaboration, and loneliness.
Workers Compensation applicable in the work-at-home environment.
- Ensure a safe working environment.
- Ensure lunch and rest breaks are taken.
- Consider virtual site visit to view employee environment to address hazards (extension cords, space heaters, ergonomics, etc.).

Conclusion

While the COVID-19 environment has placed unusual requirements on businesses, it is possible to navigate these choppy waters with good planning and strong policies. When moving employees to telecommuting, be sure you have considered the above and implement, and continue to oversee, telecommuting agreements. Modifications may be needed depending on the length of the advisory to work from home. In short, have a strong telecommuting policy, associated agreement, and training to ensure employees best understand polices that will translate to home environment compliance mandates. Working environments have changed, but compliance requirements continue to be the same…for now.

Bills in Consideration

Safeguarding Americans from Epidemics (SAFE) at Work Act of 2020 (HR 6219)

To amend the Internal Revenue Code of 1986 to allow a credit against tax for telework, and for other purposes.

Emergency Family and Medical Leave Expansion Act (HR 6220)

To amend the Family and Medical Leave Act of 1993 to provide for leave with respect to a public health emergency, and for other purposes.

HR 6245

To prohibit the Secretary of Labor from implementing or enforcing the final rule on joint employer status.

HR 6254

To require the Securities and Exchange Commission to extend exemptions for securities offered as part of employee pay to other individuals providing labor or services for remuneration, to temporarily preempt certain provisions of State law with respect to wage rates and benefits, and for other purposes.

This is not intended or provided as legal or tax advice. Consult your legal professional to ensure compliance with all applicable date in this ever-changing environment.