As the pandemic appears to subside, employers are grappling with whether and how to maintain remote work. For some employers, this means revisiting their pre-pandemic remote work policy; for others this means deciding whether to keep remote work in any form at all. Either way, discussions around remote work are part of the "new normal," and employers should carefully consider their approach in light of market demands, company culture, and legal compliance.
Styles of Remote Work
Remote work can take many forms, and employers should take care to structure their workplace in a way that suits their needs. Some options include the following.
Some employers have embraced the "remote revolution" by implementing a fully remote or "remote first" work policy, and more are expected to adopt such policies in 2022. Employers with these policies can take advantage of the current popularity of remote work among job applicants and a reduction in the cost of office space, but they need to keep legal and practical challenges (addressed in more detail below) in mind before establishing a mostly or fully remote workplace.
Hybrid policies are attractive to some employers because they strike a balance between employees who want flexibility and employers who value in-office culture and collaboration. Employers adopting a mix of in-person and remote work should establish clear, written guidelines so that employees understand expectations and have the tools they need to be productive both in the office and at home. Hybrid work poses less of a liability for employers than fully remote work, since an occasional presence in the workplace keeps more of the traditional compliance safeguards relevant.
Despite the current trend toward flexibility and work from home, some employers do not permit employees to work remotely and can't or don't want to start; others may allow remote work only on a limited basis (such as for emergencies). Although in-person work may have advantages for employee efficiency and workplace culture, limiting remote work could make employee recruitment and retention more difficult at a time when many employees have adjusted to working from home. Employers should balance the benefits of their in-office requirements with the possibility that they may have to provide enhanced compensation or other benefits to make up for the lack of remote work as an option.
Concerns for Crafting Remote Work Policies
If your organization decides to incorporate remote work into its post-pandemic strategy, it should consider how to address the challenges that follow increased remote work. Some considerations include:
In many states, state and local employment laws apply to working residents, including remote workers, regardless of whether the employer is based in that state. This can create a maze of unexpected legal exposure for an employer with remote workers across the country. For example, consider a District of Columbia employer with some local employees and others working remotely from Colorado and California. That employer must understand and comply with laws in all three jurisdictions, including laws related to pay, overtime, discrimination, expense reimbursement, and leave (among others). Special tax withholding rules may apply to the remote workers, and employers may have to register to do business in their employees' states of residence and buy separate insurance policies (such as workers' compensation and unemployment) to cover those employees.
Employers who allow full-time remote work should keep current records of where employees are working and consult with counsel about compliance with state-specific laws. If an employee decides to move across state lines or to another country, the employer will need to either terminate the employee based on their move or determine how to comply with a new set of laws.
Employee Performance and Monitoring
As many employers learned during the pandemic, remote work can require a different style of employee management. Supervisors may worry that employees are not working when they're home, or that employees are using the workday to serve as the primary caretaker for children or other family members. To solve this problem, supervisors sometimes turn to micro-management or even monitoring software.
Employee management in a remote or hybrid environment will vary between employers (and sometimes even within teams), but remote work policies and/or individual remote work agreements can help by setting expectations about scheduling, work hours, and timekeeping. Such documentation should also be clear that work from home is not a dependent care alternative, while also providing employees with some flexibility to handle rare emergency situations. Employers should train their supervisors on these policies and offer support regarding how to best manage remote and hybrid employees to ensure that the remote work arrangements continue to meet the organization's needs.
Technology and Confidentiality
Work from home exposes employers to increased risks as employees access sensitive data and systems from personal wireless networks and devices. Employers with particularly sensitive data may need to prohibit such access to their networks or limit access only to employer-provided equipment. For many employers, however, actually enforcing restrictive technology rules can be difficult or impractical. A capable information technology department can find and manage tools that mitigate security risks.
In a remote workplace, however, technology provides more than just security; it is your employees' lifeline to the workplace. Your organization's IT team can help to train employees in remote work protocols, set expectations, and provide the right tools for employees to work effectively and securely from home. Employees likely vary in how tech-savvy they are, and strong IT support can ensure that employees have the tools and help they need to stay on task and to collaborate and engage with their colleagues.
Now is an ideal time for employers to revisit their remote work policies and modify them to avoid liability and address business goals and employee needs. Pre-COVID-19 policies and temporary policies hastily adopted during the pandemic may fall short of legal requirements and can fail to create clear guidelines for employees working long-term in a remote or hybrid environment.
If your organization has any questions about updating your remote work policy and the related employment laws at issue, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.