Six Policies for Post-COVID-19 Teleworking

Six Policies for Post-COVID-19 Teleworking

At some point soon, the various stay-at-home orders, self-isolation, and social distancing will end. Employers who have dispersed their workforce and allowed or been forced into telework arrangements will face some challenges getting their employees back into the office. One of the most significant is that it will be obvious to all employees and employers that telework is both legitimate and may contribute to company efficiency. Many employees will want to continue the opportunity to telework at least some of the time. Employers are going to have to develop policy and procedures to permit teleworking (or not permit it) for employees.

Employers should begin to revisit their telework policies now to prepare for the post COVID-19 era. Here are six key policies to consider.

1. Who will be eligible for telework? Obviously, not every profession and not every job will be eligible for telework. If you run an HVAC company, clearly your technicians are not going to be able to telework (at least until we have drones capable of HVAC repair). But even within categories of employees eligible for telework, you may want to have some conditions. For example, employees might need to have at least one year of continuous service with the company before being eligible for teleworking.

2. How will you address technology? In order for telework to operate effectively, your employees will need adequate technology support. There are generally two paths to take, Bring Your Own Device (BYOD) or Company Supplied Technology. Each has its advantages and disadvantages. Most technology experts may frown on the BYOD due to security issues and other technology support matters. From a legal perspective, BYOD needs to have some specific guidance in the employee manual for use. If a company chooses BYOD, Human Resources, IT professionals and legal should consult to develop a holistic approach to a BYOD policy. Company supplied technology entails a costly upfront investment but can help alleviate some security issues. This approach requires a policy that covers use of the hardware, security on the machines, and maintenance schedules.

3. Scheduling Telework Days. There is value in having your employees working together. Working together boosts company culture, improves innovation, and improves communication among employees. Some employers worry about efficiency, but studies suggest that even the most efficient offices only have employees effectively working around five to six hours in an eight-hour workday. Teleworkers may only work five to six hours in a workday and may be even more productive. Employers with a large contingent of potential teleworkers may want to consider staggering the telework days so that a core of employees are in the office each day.  Employers who are worried about attendance issues or employees taking advantage of a three-day weekend opportunity can deny telework on Mondays and Fridays. Employers can also permit employees to choose days but the employer should always reserve the right to change days or designate dates.

4. Paid Time Off Policy. The appeal of telework is that it provides a great deal of flexibility for employees. But telework arrangements should not be a replacement for child-care arrangements. Neither should telework arrangements be considered a green light for an employee to schedule personal appointments during their telework day. However, any employer who thinks personal matters won’t happen on telework days is deluding themselves. Many Paid Time Off (PTO) policies work on either two or four-hour blocks to allow employees to take time off in less then full day increments to attend to personal matters. Employers permitting telework should emphasize that the PTO policy still applies. If an employee is going to take two hours in the middle of the workday to go to a parent-teacher conference or a doctor’s appointment, the employee should be requesting and logging the PTO. This policy has an important non-discrimination function because workers who cannot telework would have to take PTO to attend to similar matters and teleworkers should not be afforded a benefit no available to other non-teleworking workers.

5. Timekeeping for all employees, but particularly non-exempt employees. While an employer can make a policy that exempts non-exempt workers from telework availability, it may not be advantageous for a variety of reasons not to do so. But under the Fair Labor Standards Act (FLSA), non-exempt employees must be paid for all hours worked and be paid overtime for all hours worked in excess of 40 hours in a workweek. So employers need to have a mechanism for tracking time worked by non-exempt employees. Many software packages are commercially available for this function, including mechanisms to verify the employee is working. For exempt employees, timekeeping may still be a concern and the policies should be clear for all to follow.

6. Harassment/Discrimination. One of the greatest challenges facing companies is the bleed over of personal activities outside the office which may be harassing or discriminatory that impact the office environment. While ensuring that sexual harassment and other forms of discrimination don’t occur is hard enough in an office environment, a dispersed workforce can make such efforts more difficult. If you have had harassment and discrimination problems in the past, simply moving to a broad telework operation will not make such problems go away, it may actually exacerbate the problem. With employees spread out and not in the office regularly, harassment can continue often without any witnesses. Employees can still be disciplined, but investigations are more difficult. Employers should remind employees that harassment and discrimination policies still apply and incidents will be investigated and disciplined as necessary.

These six issues are by no means an exhaustive list of issue to be concerned about with a telework policy. Please consult with counsel and human resources professionals when drafting a telework policy. We are available to discuss such policy as you prepare for working life after COVID-19.