We’re Not in the Office Anymore: Legal Considerations for Remote Work
Question: Based on our association’s experience with COVID-19, we have decided to move to a hybrid work environment, with some employees working remotely full-time. Do we need to revise our employee handbook to provide for remote work? Are there any other issues about which we should be aware?
Answer: Associations should consider a number of employment-related issues when converting to a remote and/or hybrid workplace. Among other things, such a move tends to change the dynamic between an employer and its employees, particularly in terms of monitoring employee performance. Employees are working in their living rooms, studies, or bedrooms, not in a commercial office space, and there is no supervisor at the remote site to watch them check in and out, take breaks, or assess their productivity during the day. Thus, associations that allow their employees to work remotely should revise their employee handbooks to set the ground rules under which such remote work will be conducted.
For example, associations allowing at least some of their employees to work remotely should require them to be available during a standard workday (the specific hours of which can be determined) and conduct themselves just as they would in the office. Remote employees should understand that they are expected to work the same number of hours as they did in the office and that they may not schedule appointments, school pickups, or other activities during the workday except as specifically permitted by the association. Remote work is not a substitute for dependent care, and employees cannot provide such care during regular office hours.
Employee handbooks also should make clear that employees are expected to demonstrate the same level of professionalism in the remote workplace as they would in an office setting. Associations should advise their remote employees to dress appropriately (e.g., business casual) for any video conferences in which they participate. In addition, remote workers should designate a dedicated workspace within their work location and maintain it in a safe condition, free from hazards to themselves and the equipment they are using. Association policies also should mandate that employees will protect association proprietary data through the use of locked drawers and file cabinets, regular password maintenance, and similar means. A representative of the association should be permitted to make periodic on-site visits to the employee’s remote work location to confirm that the site is safe and to repair, inspect, or retrieve association-owned equipment, software, and supplies.
With remote work comes the potential for injuries in the remote work location, along with questions regarding the associated liability. Typically, associations will assume liability for work-related injuries that occur in the designated work area and result directly from the performance of the employee’s work, i.e., injuries for which they would be responsible under state worker compensation laws. Association policies should make clear, however, that the association is not liable for injuries to family members or others that may enter an employee’s remote work location.
Remote work raises additional considerations for associations having one or more employees working in a state (or other jurisdiction, including locations abroad) different from that in which the association is based. Many states provide that individuals working within their borders are governed by their laws, regardless of an employer’s headquarters location. While several states enacted special legislation to allow greater flexibility for employers during the pandemic, most of those laws have expired. Thus, to the extent state laws on employment-related matters such as expense reimbursement, PTO carryover, family leave, discrimination, and restrictive covenants differ among states, associations must understand the laws of the states in which their employees are working and apply them accordingly.
Along the same lines, associations typically must pay state withholding and unemployment taxes for their remote employees in the states in which those employees are working. They also may need to purchase separate workers compensation insurance policies to cover their remote workers performing services in other states. Finally, associations must determine whether the existence of a remote worker creates a sufficient “nexus” with that worker’s state to cause the association to be characterized as doing business there. If so, the association may be required to meet certain registration requirements and could be subject to additional income and sales tax liability. As with all the other “out of state” considerations, every state law is different. It is up to the association to determine the nature and extent of its obligations.
There are no right or wrong answers when it comes to deciding whether to allow one or more employees to work remotely. Each association should determine its needs and those of its staff, taking into consideration potential obligations to out-of-state authorities. Once those decisions are made, it is incumbent on the association not only to meet any such obligations, but also to adopt appropriate policies governing remote work and to incorporate them into an updated employee handbook.
This Law Review was written by Susan Feingold Carlson and edited by Jed Mandel, both of whom are founding members of Chicago Law Partners, LLC. CLP serves as the Association Forum’s general counsel.
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