“Can I still work from home?” – Dealing with increased requests from employees to work remotely when returning to work post-pandemic – health and safety
Greenberg Glusker Fields Claman & Machtinger
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As mask requirements have been lifted and COVID-19 infection rates have fallen, many companies are using this as an opportunity to welcome employees back into their workplaces. It is expected, and we have already seen, that there will be resistance from employees wishing to continue with a hybrid or fully remote work environment. In anticipation of these requests, employers need to consider three main points when dealing with the increasing requests from employees to work remotely.
An automatic yes/no decision for teleworking applications no longer works
The path “back to normality” is no longer passable. As so often in the past, this is a moment of change and adjustment to a new normal. Implementing a policy that automatically says either “yes” or “no” to all remote work is not recommended.
Employees can expect to work from home to some extent for a variety of reasons:
- commuting routes
- Mental and/or physical health
What to consider when evaluating telework applications
What happens if you receive an invitation to work from home or resistance to returning to work? How are you beginning to evaluate this new normal? There are a number of factors to consider internally so that you can decide where to draw the line and where to be flexible as this has both short-term and long-term implications for your business.
- Check the employee’s actual duties. Depending on an employee’s physical and/or operational responsibilities, the decision to allow an employee to work from home may vary. An assembly line worker (for example, an employee who works in a warehouse or assembly line or in a kitchen) looks very different from an employee in a call center. Of course there are gray areas. If you’re in a regulated industry, one of the considerations for employees working from home is the need for cybersecurity and additional security protocols for those working away from your physical presence. Let’s say your company supports a government agency or audits financial institutions. They have extremely robust layers of cybersecurity required for employees to be able to access the information on a computer. So it’s very difficult to orchestrate this from home. One option we saw put into practice was to select just a handful of employees to have full Virtual Private Network (VPN) access installed, and then conduct periodic cyber audits on a regular basis.
- Check the basis for the request. Consider why the employee would want to continue working from home and not return to the office. If the reason is based on a medical problem or a mental health issue, this is placed in an analysis path, which is a conversation about housing for people with disabilities. If it is for logistical reasons (e.g. the employee no longer cares for an elderly parent or toddler, has sold their car, or for a variety of personal reasons), this is a different analytical framework that is not included in this Discussion about the accommodation of disabled people.
- Consider the impact on the employee’s team. Is the employee who wants to work from home part of a collaborative team? Do you require a mixed approach or do you want to work from home permanently? What happens to the rest of the team? If one or more employees are not physically present, do you rotate the team on site on different days?
- Consider the cost of allowing the person to work from home, like the cost of equipment. According to California Labor Code 2802, employers are required to reimburse employees for “all necessary expenses or losses incurred by the employee as a direct result of the performance of his or her duties.” This includes not just something as simple as a computer, but possibly a new desk chair, a desk, a work station, an ergonomic footrest, and utilities such as the Internet or a phone line. For employees who choose to work out of state, consider the administrative and tax implications of paying employees in multiple states.
- Consider the costs of not allowing the person to work from home. Rejection of work-from-home regulations can result in higher employee turnover and loss of talent, and possibly even a loss of morale. Employees got used to not having to commute during the day or have the flexibility to run errands. Removing that flexibility can make it harder to recruit and retain talent.
How to manage remote work requests to reduce legal risks
There are several ways employers can manage remote work applications to reduce legal risk.
- Have a written policy, but train for legal issues. This shouldn’t come as a surprise, but the first recommendation is to develop a written policy. Letting different departments decide what works for their team not only reinvents the wheel and is inefficient, it also creates problems that most managers fail to recognize. Ideally, HR decision makers should create a comprehensive written policy and train managers to address legal issues such as a potential handicap problem. Disability issues are not only triggered when an employee addresses them directly. Employers are informed about possible disability accommodations in a number of indirect ways, including informal discussions between an employee and their manager, and training is key to getting this right.
- Document work-from-home interactions. As this potentially becomes a disability request, it is important to document all work from home requests and interactions. We’ve seen a pattern of different reasons for working from home, ranging from convenience to an emergency to a doctor’s note. When these requests are documented in writing, employers are much better able to assess the credibility of the information, including that which triggers a mediation interview. These requests may be perfectly genuine, but the documentation allows you to spot a pattern. A related consideration is that managers are not always well trained in documentation. You want to create a regulated system, e.g. B. Sending an email to Human Resources stating that a particular employee has asked to work from home, why and what the response was, including if and for how long has been approved.
- Treat like with like. If you denied four people a remote work request and then agreed to a fifth, you want to be able to explain why. If there is a medical reason that needs to be addressed, this is a separate conversation. But that could lead to an awkward position where you can’t share medical issues with other employees, but you also don’t want people to feel like you’re picking favorites. To assess whether you are treating like with like, you can look at whether they work in the same department or whether they have similar responsibilities.
- Set the duration of the WFH and require regular face-to-face meetings and/or at least video conferences. If you allow work from home, set the duration and require regular meetings, either in person or via video. Regardless of how employees assess their own productivity while working from home, we’ve found that remote workers are increasingly at risk of switching companies, doing other jobs, or no longer feeling part of the organization. When managers don’t see or connect with those who report to them, they stop thinking about them, which can lead to other problems such as attrition or potential discriminatory action.
- Confirm that the employee is still working in CA. Employers should regularly confirm which state, county, and city the employee works in. Not only does California have its own laws that apply to workers, but different cities, counties, and municipalities have their own. So if an employee worked in one city and then moved, this could lead to several changes, e.g. B. to the paid sick leave to which he is entitled. Whereas in the past the employer did not need to know where the employee moved to live, today the home is the place of work. Often employees don’t say anything to their employers because either it didn’t occur to them or they didn’t think it was up to the employer to know. Employers must tell their employees who are working from home that it is important for the company to know this, as it affects a wide range of regulations.
- Confirm your WC insurance accounts for WFH and associated risks. One of your checklist items, as part of your overall design, is determining how and to what extent your workers’ compensation coverage and policies, as well as workplace safety policies, need to be changed and updated. If everyone will be working from home at any level, your IPP and OSHA policies may need to be reviewed, and you may need to change a designated compliance person who is now responsible for regular workplace reviews to ensure they are in compliance meet safety standards for a workplace.
The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.
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