The Work-From-Home movement that began in the 1990s and has continued to grow slowly across the country as companies became more technologically sophisticated has erupted in popularity since the beginning of the COVID-19 Pandemic in March 2020. Companies that were previously hesitant to embrace the mobile, home-based or hybrid workforce had to transition quickly to allow for the protection of their employees while allowing productivity to continue. Some stats report that, as of November 2020, 42% of the country’s labor force is working from home or “telecommuting” and that almost twice as many employees are working from home than are working in a physical office. This is a new reality for businesses that does not seem likely to change for the foreseeable future. Even when the pandemic eventually ends, one in six workers are projected to continue working from home or using some sort of hybrid work plan, according to a study by Harvard Business School. This new landscape brings with it a number of issues that employers should consider as the employees continue to work from home in the long term. Read on for some of the common risks of working from home.
One of the common risks of working from home involves properly accounting for the impact of the work-from-home model on taxes. If your employees choose to work from home in another state, doing so may inadvertently trigger state payroll tax registration and filing requirements for conducting business in more than one state. The business must consider whether the contacts are sufficient to trigger a determination that your business has sufficient minimum contacts to subject itself to that state’s tax regime. To prevent this, it must be clear that the work from home policies are temporary measures for the health and safety of employees and society at large.
Another risk of the work-from-home approach for businesses stems from anti-discrimination law. It is advised to add a work-from-home policy to your employee manual and apply it uniformly to all employees. For companies that are enacting a “work from home” policy for the first time or that are significantly expanding an existing policy, it may be important to clarify that the policy is being enacted solely as a response to COVID-19 (and perhaps future pandemic situations). When rolling out a telecommuting policy, employers must also consider disability accommodation issues. If an employee has a disability-related accommodation at work (e.g. taking additional breaks or using an ergonomic keyboard or chair), employers need to consider providing those same accommodations for an employee’s work at home, subject to the same undue hardship considerations as exist with providing such accommodations when working in the office. With work-from-home (or WFH) videoconferencing, the risk of discrimination has increased because of employers’ views into employees’ home lives, and the possibility of involuntary disclosure.
A third issue that commonly arises with working from home stems from the Fair Labor Standards Act, which provides the requirements for tracking employees time at work. Employers must have accurate means for tracking all time that hourly employees work. This means that employees need to record and be encouraged to report all start and stop times – at the beginning and end of each day, at the beginning and end of all breaks taken in excess of 20 minutes, and for any work performed outside the normal workday (e.g., text messages and e-mails and working on projects after normal working hours).
Finally, employers need to consider cybersecurity concerns for their work-from-home employees. Employers should strive to ensure that no federal privacy laws, such as HIPAA, or individual state laws are violated by the resources used or work conducted at an employee’s home. As employees are able to use their own devices or personal WIFI at home to complete the work that was previously done from a more secure location, Employers need to make sure the proper permissions and protocols are put in place to protect their information. Make sure that your employee handbook is up to date regarding privacy and security expectations. Although they are no longer under one building, your employees are still governed by the company’s policies. In order to protect company information, including valuable confidential and proprietary information, and to prevent any sort of phishing schemes, make sure to put in place two-step identification for all logins. Additionally, it is essential to have IT support available as questions of security arise. Whether employees have questions about the quality of WIFI they can use or how they should be executing documents, have someone committed to answering questions regarding the work from home mechanics.
Understanding the common risks of working from home is a must for any employer or employee contemplating it as an option. Bear in mind that this article is by no means exhaustive or comprehensive in terms of identifying or analyzing the risks of working from home. This article only scratches the surface for all of the possible prevention steps your business can take to successfully put in place protection as employees work from home. For more information and to make necessary employee handbook revisions, contact your attorney.
The information herein is not legal advice and does not create an attorney/client relationship. The information is in the form of legal education and is intended to provide general information about the matter. The above is not, nor is it intended to be, legal advice. Consult your attorney with questions.