Telework Takes Center Stage Amid Coronavirus Pandemic   

By Vin Gurrieri
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Law360 (March 13, 2020, 10:32 PM EDT) -- Offices around the country are turning into ghost towns as American businesses turn en masse to telework as a way to ensure the novel coronavirus doesn't decimate their ranks.

The World Health Organization on Friday confirmed more than 132,000 cases worldwide of COVID-19, the disease caused by the coronavirus, and has declared it a pandemic. In the U.S., state and local authorities in many locations have acted to limit large public gatherings, and many businesses have shuttered their doors entirely.

As public health experts have increasingly called for social distancing to be imposed in response to the coronavirus pandemic, some businesses whose workers don't have to be physically present to do their jobs have encouraged or required that employees work remotely, even companies that haven't traditionally embraced telework.

"I think employers are dealing with it this way for a variety of reasons," said Scott Witlin, a partner at Barnes & Thornburg LLP. "They want to be able to keep their businesses going, and they want to allay concerns that are either justified or even overblown from their employees that they're not putting themselves in situations where they put themselves danger. If employees are going to be concerned or may not come in to work because they are fearful that they may become infected, allowing employees to work from home is an alternative that may be less than 100% ideal but is a way of mitigating the damage that can be done by a complete shutdown."

Donald Samuels, chair of Polsinelli PC's employment litigation practice, offered a similar sentiment, saying that a work-from-home plan, particularly under the cloud of a pandemic, is "employee-friendly and good for business."

"Under these circumstances, the paramount concern should be the well-being of individuals with the recognition that a lot of folks obviously count on their paycheck," Samuels said. "Employers can ease that burden and further their own interest and further the public interest by facilitating employees from working at home."

Here are five things employers need to know about letting employees work from home.

Set a Clear Policy

While not every employer may be cut out for a telework program — hotels and restaurants, for example, that rely on face-to-face interactions that can't be done remotely — many white collar businesses can take advantage of the fact that workers' jobs can be done off-site while a pandemic is going on.

But whether a company already has a telework program in place or is getting on board due to the practical realities brought on by the coronavirus, lawyers say it's vital that businesses spell out the details of their programs upfront.

"The first step is setting clear expectations, and, obviously, the form you can do that is [through] a comprehensive work-from-home policy," said Emily Litzinger of Fisher Phillips, noting it could be done as simply as sending an email with the policy laid out.

Such a communication can include details such as workers' expected start and stop times, the extent to which they're expected to remain available, productivity standards, and whether any conference calls or virtual meetings will be required, she said.

Jeffrey Ruzal, a member at Epstein Becker Green, said there need to be parameters so that managers, supervisors and workers all "understand what the rules are."

Otherwise, he said "people are going to do what they think is best, and that might fall outside the operational constraints of the business," such as operating in a relaxed atmosphere, working past their shift or through lunch, and accruing overtime that an employer hasn't budgeted for.

But regardless of the policy that employers adopt, it must be applied evenly and consistently for all employees, according to Fenwick & West LLP partner Sheeva Ghassemi-Vanni.

"Make sure you're not unintentionally, willy-nilly deciding who gets to work from home and who doesn't because then you open yourself up to discrimination claims," Ghassemi-Vanni said, noting also that telework might qualify as an accommodation under the disability anti-discrimination laws if they are in a category that renders them more susceptible to being infected.

Track Hours Accurately

Just because employees are working from home doesn't mean they don't get paid as they otherwise would if they were physically in the office. Since they are on the clock, workers must be paid their regular hourly salary, or weekly salary in the case of exempt workers, as well as any applicable overtime.

But tracking hours of nonexempt workers can be tricky when they aren't physically present, attorneys say, particularly when it comes to tracking overtime or whether workers are taking any mandated meal breaks and rest periods.

"If you are allowing a nonexempt, hourly worker to work from home, it [is] a bit more of a complication," Litzinger said.

Samuels said that the best method of recording hours is an electronic timekeeping system that workers can log in to. But more old-fashioned and less formal methods can work just as well, such as a daily email from a worker to their supervisor attesting to the hours they worked or a timesheet filled out by hand and turned in later, he said.

To mitigate any potential legal risk from improperly paying employees, Ruzal said that telework puts the onus on employers to "stress" in their policies the need for hourly workers to self-report time.

"From a management perspective, it will always be safer for an employer ... to have the nonexempt employee self-report the time because that way you are putting the responsibility on the employee to let the employer know how many hours [the] employee worked," Ruzal said.

Specific Rules Apply to Salaried Workers

Nonexempt hourly workers generally only must be paid for time worked. But with salaried, exempt employees, the Fair Labor Standards Act requires that they be paid a set salary irrespective of the number of hours they work unless the business is closed for at least a full workweek and the person performs no work at all.

One issue particular to exempt employees that can come up amid the coronavirus outbreak, according to Ruzal, is that if a business shuts down part of the way through a workweek, exempt workers must be paid as if they worked the full week if they worked any hours at all before shop was closed up.

"If, for example, a workplace closes midweek and an exempt employee works one day or even half of a day and the exempt employee is sent home because of the operational needs of the employer, in that instance the exempt employee still has to be paid for that workweek," Ruzal said. "That's one question that we've been receiving from clients that I think in the past certain employers have made mistakes on."

Ruzal also noted that while there are regulations that exist to allow exempt employees to perform nonexempt work in emergency situations without putting their exempt status at risk, employers are playing with fire if they allow exempt workers to fill in for hourly workers for long.

"It loses the emergency definition once it becomes something that the employer can plan for," Ruzal said. "Such as here with COVID-19, since it's sort of been somewhat of a slow boil ... even though it is unfortunately gaining momentum in the last week or so, it is something that employers can start planning around. So I think there's a risk of relying on the emergency carve-out because I don't think it will necessarily apply."

Litzinger also noted that just because those employees are overtime-exempt doesn't mean they can skirt any duties if they are teleworking. But she added that employers may be wise to allow some leeway on the actual hours they work in the context of the coronavirus since outside factors can impact their ability to perform tasks, such as school shutting down and people having to work from home with their kids nearby.

"For exempt employees, while they're not necessarily required to track their hours, they still need to continue to complete their hours that they need to do their job and continue to get paid their agreed-upon salary," she said. "I have encouraged employers to be really flexible about work performance but also — especially when you're dealing with professional exempt employees — work hours."

Keep Workers' Expenses in Mind in the Golden State

In California, Ghassemi-Vanni noted that when employees are working from home based on, for example, a "mandatory edict" from their employer, the company's business costs can't be passed along to those employees.

These include things such as costs associated with personal cellphones that workers use to make calls or internet bandwidth they use to work, she said, noting that such costs "have to be reimbursed or indemnified" under the California Labor Code.

"I think that's one that employers aren't really thinking about — everyone's in a panic of 'let's work from home, let's work from home,' but in California, they may not be thinking about what are the financial and legal implications of having someone do that," Ghassemi-Vanni said.

While he noted that the issue isn't usually one that comes up because workers usually only work from home for a day or so here or there and they do so by choice, the situation is different in the context of COVID-19 since mandates might be requiring them to do so.

"Will this be litigated, I don't know, probably not ... but it is a thing to be thinking about especially if this drags on," she said. "I think ultimately, though, just from a human aspect, most people are approaching this from a perspective of 'we're all in this together' ... and so my hope is we wouldn't see a bunch of lawsuits pop up about unreimbursed one week's worth of working remote."

Some Disability Accommodations May Transfer

If an employee is afforded some sort of disability accommodation when they are in the office, employers in some situations may still be required to provide it to workers even when they are working remotely.

If the accommodation is something like a worker having to take additional breaks, Ghassemi-Vanni said it's pretty easy for that to continue when an employee is at home. But employers might have to put in more of an effort if the accommodation involves specialized equipment, such as a special chair or desk.

Ghassemi-Vanni said the key consideration in such situations is whether the accommodation is still considered to be "reasonable" when it's transferred to the home.

"Ultimately, it's all still looked at through the lens of reasonableness and whether [the accommodation] presents an undue hardship [on the employer]," Ghassemi-Vanni said. "My hope is that if these things ever get litigated that courts will look at the totality of the circumstances here — there's a pandemic, people needed to work from home for a short period of time — that a court would give an employer more leeway given the full circumstances here."

--Editing by Brian Baresch and Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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