Accord­ing to Gallup, the num­ber of days employ­ees are work­ing remote­ly has dou­bled dur­ing the pan­dem­ic. Some com­pa­nies are even con­sid­er­ing mak­ing a remote work arrange­ment per­ma­nent. While there are no laws that exclu­sive­ly apply to remote work­places, remote work does come with addi­tion­al com­pli­ance risks. Below is our gen­er­al guid­ance for employers.

Log­ging Hours and Prepar­ing Paychecks
Make sure that employ­ees are log­ging all of their time. Keep in mind that when work­ing from home, the bound­aries between work and home life are easy to blur. Employ­ees may be rack­ing up “off the clock” work, and even over­time, that they aren’t being paid for. While this may seem harm­less enough in the moment, par­tic­u­lar­ly if the employ­ee isn’t com­plain­ing, unpaid wages can come back to bite you once the employ­ee is on their way out the door.

Min­i­mum Wage
Employ­ees should be paid at least the min­i­mum wage of the state where they phys­i­cal­ly work, whether this is a satel­lite office or their own home. Beyond that, it’s impor­tant to be aware that some cities and coun­ties have even high­er min­i­mum wages than the state they are locat­ed in. In gen­er­al, with most employ­ment laws, you should fol­low the law that is most ben­e­fi­cial to the employee.

Remote employ­ees must take all required break and rest peri­ods required by law, as if they were in the workplace.

Harass­ment Pre­ven­tion Considerations
You may have employ­ees work­ing in a state that has a low­er bar for what’s con­sid­ered harass­ment or that requires harass­ment pre­ven­tion train­ing. You can find this infor­ma­tion on the State Law pages on the HR Sup­port Center.

Remote work also comes with addi­tion­al oppor­tu­ni­ties for harass­ment (even if it doesn’t rise to the lev­el of ille­gal harass­ment) such as employ­ees wear­ing cloth­ing that cross­es the line into inap­pro­pri­ate, room­mates in the back­ground unaware that they are on cam­era, or vis­i­ble objects that oth­er employ­ees may con­sid­er offen­sive. You can pre­vent these sorts of inci­dents by hav­ing clear, doc­u­ment­ed expec­ta­tions about remote meet­ings, com­mu­ni­cat­ing those expec­ta­tions to your employ­ees, and hold­ing every­one account­able to them. It also wouldn’t hurt to occa­sion­al­ly remind every­one to be mind­ful that they and what’s behind them are vis­i­ble to cowork­ers when they’re on video. That said, going over­board with stan­dards that you’re apply­ing to employ­ees’ pri­vate homes can cause anx­i­ety and morale issues, so make sure your restric­tions have some log­i­cal busi­ness-relat­ed explanation.

Work­place Posters
Many of the laws relat­ed to work­place posters were writ­ten decades before the inter­net, and so their require­ments don’t always make sense giv­en today’s technology.

The safest option to ensure you’re com­ply­ing will all post­ing require­ments in one fell swoop is to mail hard copies of any applic­a­ble work­place posters to remote employ­ees and let them do what they like with the posters at their home office. If you have employ­ees in mul­ti­ple states, you should send each employ­ee the required fed­er­al posters, plus any applic­a­ble to the state in which they work.

Alter­na­tive­ly, more risk-tol­er­ant employ­ers often pro­vide these required notices and posters on a com­pa­ny web­site or intranet that employ­ees can access. A num­ber of new­er post­ing laws express­ly allow for elec­tron­ic post­ing, but this option is not nec­es­sar­i­ly com­pli­ant with every post­ing law out there.

FMLA Eli­gi­bil­i­ty
Remote employ­ees who oth­er­wise qual­i­fy will be eli­gi­ble for leave under the fed­er­al Fam­i­ly and Med­ical Leave Act (FMLA) if they report to or receive work assign­ments from a loca­tion that has 50 or more employ­ees with­in a 75-mile radius.

Accord­ing to the FMLA reg­u­la­tions, the work­site for remote employ­ees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for exam­ple, if a remote employ­ee work­ing in Frisco, TX, reports to their company’s head­quar­ters in Port­land, OR, and that site in Port­land has 65 employ­ees work­ing with­in a 75-mile radius, then the employ­ee in Frisco may be eli­gi­ble for FMLA. How­ev­er, if the site in Port­land has only 42 employ­ees, then the remote employ­ee would not be eli­gi­ble for FMLA. The dis­tance of the remote employ­ee from the company’s head­quar­ters is immaterial.

Ver­i­fy­ing I‑9s
In nor­mal cir­cum­stances, the phys­i­cal pres­ence require­ment of the Employ­ment Eli­gi­bil­i­ty Ver­i­fi­ca­tion, Form I‑9, requires that employ­ers, or an autho­rized rep­re­sen­ta­tive, phys­i­cal­ly exam­ine, in the employee’s phys­i­cal pres­ence, the unex­pired document(s) the employ­ee presents from the Lists of Accept­able Doc­u­ments to com­plete the Doc­u­ments fields in Form I‑9’s Sec­tion 2.

How­ev­er, in March, the Depart­ment of Home­land Secu­ri­ty (DHS) tem­porar­i­ly sus­pend­ed the phys­i­cal pres­ence require­ment for employ­ers and work­places that are oper­at­ing remote­ly due to COVID-19 relat­ed pre­cau­tions. In oth­er words, employ­ers with employ­ees tak­ing phys­i­cal prox­im­i­ty pre­cau­tions due to COVID-19 (and oper­at­ing remote­ly) are not required to review the employee’s iden­ti­ty and employ­ment autho­riza­tion doc­u­ments in the employee’s phys­i­cal pres­ence. Inspec­tion should instead be done remote­ly. As of the date of this newslet­ter, this tem­po­rary rule is still in effect.

In some states, an employ­er is required either to pro­vide employ­ees with the tools and items nec­es­sary to com­plete the job or to reim­burse employ­ees for these expens­es. How­ev­er, work­sta­tion equip­ment like desks and chairs is usu­al­ly not includ­ed in this cat­e­go­ry of nec­es­sary items.

That said, an employ­ee might request a device or some form of fur­ni­ture as a rea­son­able accom­mo­da­tion under the Amer­i­cans with Dis­abil­i­ties Act (ADA) so they can per­form the essen­tial func­tions of their job. In such cas­es, you would con­sid­er it like any oth­er ADA request. Allow­ing them to take home their ergonom­ic office chair, for exam­ple, would prob­a­bly not be an undue hard­ship and there­fore some­thing you should do.

Decid­ing Who Can Work from Home
You may offer dif­fer­ent ben­e­fits or terms of employ­ment to dif­fer­ent groups of employ­ees as long as the dis­tinc­tion is based on non-dis­crim­i­na­to­ry cri­te­ria. For instance, a telecom­mut­ing option or require­ment can be based on the type of work per­formed, employ­ee clas­si­fi­ca­tion (exempt v. non-exempt), or loca­tion of the office or the employ­ee. You should be able to sup­port the busi­ness jus­ti­fi­ca­tion for allow­ing or requir­ing cer­tain groups to telecommute.

Orig­i­nal­ly post­ed on ThinkHR