Putting “Workplace” into Remote Workplaces

When you think of successful workplaces, what do you think of?  You think of collaboration.  Communication.  Energy.  Production.  Employees who are on the same page, aligned towards a common goal and a central purpose.  Some employers believe that only gets achieved with everyone under the same roof and that remote work is an obstacle or a burden. 

Then, COVID-19 hit.  States either were shutting down businesses outright or providing severe restrictions that forced businesses to adapt on the fly.  Remote work suddenly became an indispensable path, a path of necessity to keep businesses afloat at a time when reduced revenue streams became the norm and federal loan programs (such as Paycheck Protection Program and the Mid-Size Loan program under the CARES Act) helped keep companies afloat and ease their financial pain. 

As state reopening plans have eased some of these burdens, the question now confronting many of these same employers is how does remote work fit in their future business strategy?  As I noted in my previous Compliance Corner blog post, many companies will have to contend with employees being at home to attend to students with remote school needs under the Families First Coronavirus Response Act (FFCRA), and may inevitably face that dilemma once that leave time runs out (should hybrid and/or remote school plans remain in place – which is very likely). 

But what about other employees?  The Equal Employment Opportunity Commission (EEOC) has already chimed in reminding employers of the need to accommodate employees who are requesting accommodation from their employers because they have a medical condition that puts them at higher risk for severe illness from COVID-19.  Remote work has likewise been noted as a form of reasonable accommodation in many cases over time – though those determinations are fact-specific.

The point is that external forces are putting more pressure upon employers to break away from the brick and mortar mentality that work can only be done at a company’s facility.  According to the U.S. Bureau of Labor Statistics, 16% of the labor force had been working remotely to some degree based upon 2019 averages.  Furthermore, according to the American Psychological Association, remote work increased by 115% between 2005 and 2015.   Make no mistake, remote work is here to stay.

But, are you ready for it?  We all muddled through it the best we could in the spring.  How can we plan for it and embrace it moving forward as a long-term strategy?  It requires examining your operations from the ground up and from the top down. 

From a systems and technology point of view, how are you going to manage access to your company’s resources?  You might have been more flexible with allowing personal devices to tap systems early on, will that continue moving forward?  If so, how do you know employees are keeping their systems up to date with current antivirus and malware software?  Are you going to require them to use company-licensed software for that purpose?  Or, are you just going to restrict remote access to users with company-issued equipment? 

How are you going to track the hours worked by your remote workers?  The United States Department of Labor issued Field Assistance Bulletin 2020-5 on August 24th that underscores the obligation to pay remote employees for hours worked if the employers know or have reason to believe that work is being performed.    Do you have a defined and reasonable reporting procedure for remote workers?  Is it clearly communicated and reinforced by management?  The bulletin points out that if an employee fails to report unscheduled hours worked through such a procedure, the employer is not obligated to investigate further to uncover unreported hours, and with that, there is not an obligation to pay.

However, that shifts to another component to assess:  how are these employees being managed?   Customary weekly meetings may work for in-person staff but such frequency may not be effective for the remote worker who is not otherwise engaged during the week by their supervisor or peers.  Not only may the frequency need to change, but how we engage them through Zoom, Microsoft Teams or similar technologies may need to change as well.  How are work assignments, projects and tasks being mapped out through these platforms to keep all stakeholders (both remote and non-remote workers) on the same page?  Should dashboards or gantt charts, for instance, be considered if they haven’t been previously?  Do managers need to be more specific on goal setting and set true SMART goals?

And what about policies?  Do they speak to remote work at all when it comes to the likes of a company’s attendance policy?  Call out policy?  Overtime?  If Paid Time Off or vacation policies are based upon accrual methods for earning time based upon hours worked, do we have the mechanisms in place to allow for that to happen accurately and effectively?

What about the safety of remote workplaces?  Are you going to conduct ergonomic assessments of these sites, or just obtain employee feedback on how they are set up (be it verbal feedback, pictures or otherwise) or nothing at all? While this may be a lower risk issue than that of information security, nonetheless employers should be aware that an employee who gets injured working for you (whether in your facility or otherwise) can be governed by worker compensation.

Then there is the question of culture.  Are leaders and managers supporting remote workers effectively in light of all of these considerations?  Are they communicating their strategy and collective efforts to others throughout the organization in a way that fosters cohesion among all (so that others understand that management is on top of things happening remotely), rather than resentment by peers who view remote workers as receiving favorable treatment and not being a contributor to the bottom line. For remote workers (especially those that work in teams with others who may be onsite), resentment can be a precursor to retaliation and in cases where they are working remotely due to reasonable accommodation issues, in particular, such retaliation can lay the groundwork for litigation down the road.  

Therefore, when you put it all together, embracing remote work requires having answers to all of these questions and addressing these considerations one way or the other.  In short, having a well-thought-out gameplan.  For those companies that have put together a successful process and strategy, they can be well-positioned to come out on top after the pandemic is over. 

Thank you for viewing this article in EANE’s Employer’s Compliance Corner Blog, Authored by our Director of Compliance, Mark Adams. Please visit again soon to stay up to date on today’s compliance updates and best practices for employers.