Authored by Robert Bernstein and Elizabeth Rice, Laner Muchin
Preparing for remote work may seem like a challenging undertaking, but it is the least extreme personnel option of the four discussed in this article.
If your business is such that your employees can work remotely, this is a great option to continue to run your business while protecting the health of your employees. This option comes with the least amount of changes to the way that your employees are paid and receive benefits.
Employer Intent: This is the best option for those who wish to keep their workforce whole and intact through this crisis. By allowing employees to work remotely, rather than reducing their hours or moving them off-duty, you have the highest chance of keeping your employees when you return to normal operations. However, depending on the industry, we recognize that this option may not be practical or feasible.
Notice to Employees: Legally, no notice to employees is required. However, practically speaking you should give your employees as much notice as possible to give them time to prepare. It is also a prudent idea to provide written notice to employees receiving a remote work arrangement as an accommodation under the Americans with Disabilities Act (ADA). In this vein, keep in mind that if an employee notifies you of their need to work at home due to a disability (whether COVID-19 related or not), you should engage in the interactive process to determine if it is a reasonable accommodation for your business to allow the employee to work remotely. Keep in mind that, depending on the circumstances, one form of a reasonable accommodation under the ADA may be allowing an employee to work from home. It is also very important to contemporaneously document that you as the employer effectively engaged in the interactive process.
Benefits: Employees working remotely will typically continue to receive the benefits they had been receiving. These employees will have no need for unemployment benefits so long as their work hours are not reduced. Additionally, under the Families First Coronavirus Response Act (FFCRA), which was enacted into law on March 18, 2020 (and becomes effective on April 2, 2020), an employer with fewer than 500 employees may have to provide employees with emergency paid sick leave benefits of up to 14 days and paid leave under the Family Medical Leave Act (FMLA) for qualifying COVID-19 reasons.
Pay: Salaried exempt employees must continue to receive their normal weekly salary, so long as they perform any work within that workweek. Hourly non-exempt employees can still be paid by the hour for the work they complete remotely. You should direct your hourly employees to keep track of their work hours and pay them accordingly, as well as consider whether you want to have your salaried exempt employees track their hours as well so you have a sense as to their productivity during this timeframe.
Employee Work Visa Status: The H-1B visa is a non-immigrant visa that allows companies in the United States to employ graduate-level workers to work in specialized jobs. Visa status is likely not impacted, so long as H-1B employees do not work remotely for more than 30 days (and in some cases 60 days). If H-1B employees work remotely for longer than this time period, a new or amended H-1B petition may be required. This is an area we recommend discussing with an immigration attorney before taking action.
Additional Considerations: Productivity is a key concern when your employees work remotely. You may consider setting up a system for all of your employees to keep track of their time while working remotely, to ensure productivity. Encourage your employees to maintain a regular schedule while working remotely if that is consistent with your business needs. It is also important to task supervisory employees to check in with your remote working employees and make sure they are keeping on task and working efficiently. Clearly communicate to your employees what will be expected of them while they are working remotely. You should consider creating a remote work policy dictating standards of work and operations.
Disclaimer: This article is intended to provide helpful information and should not be considered legal advice. Please consult your labor and employment attorney or your immigration attorney, depending on the issues involved, to discuss advice as to the individualized circumstances pertaining your issues or situations.
Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.