As positive-cases continue to rise, and more Americans are heeding officials’ requests for increased “social distancing” (or “physical distancing“), many businesses are transitioning work from the office to employees’ homes.  As teleworking becomes a new norm in American life, here are a few recommendations in developing your business’s work-from-home policies.

1. Establish a Clear Telework Plan & Apply it Uniformly

Updating or creating a clear work-from-home policy allows employers to set clear expectations for employees and supervisors. Rules around the start and stop times, reporting hours worked, and the procedures for virtual meetings can give workers clear guidelines during this transition from the office to the home. 

More importantly, though, is implementing that policy uniformly across the board.  Employers should be wary of cherry-picking which employees must report to the office and who can work from home.  Such inconsistencies could open employers up to discrimination claims.  

2. Accurately Maintain Time Records

Employees must be paid for hours worked, as they normally would.

Whether a modern, electronic system that records employees’ time or an old-fashioned Excel timesheet or daily email, employers must have a mechanism by which employees can report their time accurately.  This is to ensure employers can appropriately pay employees for time worked.

Many experts stress the importance of hourly workers self-reporting their times to employers, as to place the burden on the employee to track their time.  

3. Pay Employees Appropriately

The emphasis on accurate time reporting is to ensure employers comply with the Fair Labor Standards Act (FLSA).  In response to the outbreak, the Department of Labor issued guidelines and resources to aid in employers’ response to the Coronavirus.  Among other things, the guidelines clarify the treatment of non-exempt and exempt employees:

Non-Exempt Employees: Non-exempt employees are typically those employees who earn less than $684 per week and have little discretion in how their work is completed.  For non-exempt employees who don’t work because their employer suspended operations, employers do not have to pay for the hours that employee would have worked.  

Non-exempt employees are entitled to overtime wages.  So, employers will want to monitor the time worked at home and set clear policies regarding overtime worked.  

Exempt Employees: Exempt employees are typically those employees who earn more than $684 per week and exercise sufficient discretion in at least half of their job tasks.  For exempt employees who perform any work in a week in which the employer suspends operations, the employer must pay those employees’ salaries.  Otherwise, the employer could risk losing those employees’ exempt status.  

Exception: However, if an exempt employee chooses not to work for personal reasons, when work is available, the employer does not have to pay the employee for that time.  The guidelines set out examples for this exception.

4. Keep in Mind ADA Accommodations

If an employee has ADA work accommodations, some situations may still require the employer to provide those accommodations to that employee.  The issue is whether that accommodation is still considered “reasonable” when applied to working from home. 

Pre-Coronavirus, teleworking as an ADA accommodation was a hotly contested issue.  Post-virus, this accommodation may not seem so unreasonable.  This will be an interesting area to keep an eye on when all of this is said and done.

5. Preserve Cybersecurity

While many employers are encouraging, and in some instances requiring, employees to work from home, it is important for companies to maintain their data privacy and cybersecurity protocols.

If employees are accessing confidential files from their home networks, necessary security measures should be in place to protect clients’ personal information.  Many states, like New York and California, require reasonable security measures in protecting consumers’ personal data.  Not only are these laws still in effect during this new reality, but businesses’ security networks are more vulnerable to cyber-attacks.  

These issues can be addressed with common-sense security measures, such as emphasizing existing policies and updating those policies to provide increased flexibility in reporting requirements.

Got questions? Worried about being compliant with federal and state law? Ask us – we’re here to help

Trey Ferguson

Trey is a current law student at Campbell University's School of Law, where he is a teaching scholar for the first-year writing course and a member of the Campbell Law Review. As a former high school math teacher, Trey is a self-admitted math nerd. Follow him on Twitter or connect with him on LinkedIn.