Issues Arising from a
“Work from Home” Workplace
By JANELL AHNERT
The “typical” work-from-home scenario changed drastically in 2020. Instead of dealing with work-from-home requests from employees on a case-by-case basis, employers found themselves mandating that employees stay home to work during the pandemic. Many employers were faced with a first-time scenario –having the majority of their workforce working from home as opposed to a small percentage. Moreover, in the past, work-from-home arrangements were typically voluntary, arising from requests by employees. As a result, employers could often dictate requirements for employees before granting any such arrangement. As a result, many employers have stale “telework policies” that may not address the current work-from-home environment. It has become very clear that remote work will exist beyond COVID19. As employers start to plan for remote work beyond the pandemic, they must transition from the emergency “make it work” environment of pandemic remote work to one that addresses the long-term post-pandemic reality of managing their at-home workforce. Revisit Stale Telework Policies Employers need to revisit stale “telework” policies. Many human resources professionals have, for the first time, personal work-from-home experience arising from the pandemic. Utilize your experience in reviewing your company policies to ensure they address the situations your remote employees are now experiencing. Remote work policies or agreements should provide clear guidance to employees on the process, expectations, and obligations of a remote work arrangement. Include factors that must be established for an employee to continue to be eligible for a work-fromhome arrangement. Consider position, service and performance requirements. Manage employee expectations regarding the duration of work-from-home agreements. Make sure you document the approval of a work-from-home arrangement in writing. Clarify which job functions are essential. Provide a limited period of time for approval, and reserve the right to revisit as circumstances may dictate. The policy needs to allow the business to reconsider any such arrangements if, and when, business circumstances change. Remote Work as an Accommodation Employees with disabilities may seek to work from home as a reasonable accommodation under the Americans with Disabilities Act (ADA), regardless of the pandemic. The employer must determine if working from home is a reasonable accommodation. This determination should be made through an individualized, flexible "interactive process" with the employee, which needs to be documented. You may need to request information about the individual's medical condition (including reasonable documentation) if it is unclear whether the employer’s condition is a "disability" as defined by the ADA. You may also want to discuss other types of accommodations that would allow the person to remain full-time, or part-time in the workplace. In some situations, working at home may be the only effective option for an employee with a disability. 36
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If a work-from-home accommodation is denied as unreasonable post-pandemic, and the employee (or others performing the same job duties) was required to work remotely during the pandemic, the employer must be prepared to explain what circumstances have changed. For example, was the work-from-home situation during the COVID crisis ineffective? Was the employee unable to perform all of the essential functions of the job from home? If the employee’s productivity decreased, you must be able to establish the impact on the business. In other words, the short-term emergency pivot to at-home work during the pandemic does not necessarily translate to an argument for employees that all work-from-home arrangements are inherently reasonable under the ADA post-pandemic. However, it is the employer’s burden to establish that the accommodation is now unreasonable, through consistent documentation of issues that occurred during pandemic telework. Data Privacy & Security Keeping confidential data private and secure is a challenge when working in the office. It becomes exponentially harder when employees are working from home. Employers must develop privacy and security protocols as part of their remote work policies. The employer’s IT team should control remote devices, such as company-owned laptops, through required password management, firewall configurations, multifactor authentication, reasonable session timeouts. The company should consider mandating that all work be performed on company-owned devices that use updated antivirus protection programs. Employees should be performing work using secure Wi-Fi, preferably through an employer Virtual Private Network (VPN). Employees should be instructed to always secure their company laptop and work data. Prohibit anyone else in household from accessing company devices. Consider a rigorous policy regarding who is allowed to print remotely and what data is allowed to be printed. Also consider the use of in-home shredders or shredding companies that visit homes to properly destroy confidential documents. As always, it is most important to formalize these requirements in your policy, train employees on the requirements, and provide continued communication and reminders about the importance of these security requirements. Wage & Hour Considerations Employers must clearly communicate with remote workers regarding time-keeping, scheduling, meal and rest, and overtime requirements and policies. One issue that often develops in remote work arrangements is employees performing “off-the-clock” work. Working off the clock occurs when a non-exempt employee does work and does not record the time. As a result, the hourly employee is not paid for all time worked as required under the Fair Labor Standards Act (FLSA).
