Temporary Teleworking During COVID-19 Outbreak: Guidelines for U.S. Employers

As the U.S. COVID-19 outbreak continues, many employers are increasingly thinking about what steps they might need or want to take to manage the impact in their workplace, including utilizing temporary telework arrangements. Whether and how an employer implements such a program, either on a targeted or full-scale basis, is largely dependent on its employees, facilities and needs. The following are some relevant questions employers should consider when determining if teleworking is appropriate.

To what extent is temporary telework appropriate for our employees?

Whether temporary telework is a viable option for a particular employer depends largely on the work performed by employees. Work that cannot be performed remotely on an ongoing basis could still be suitable for telework on a temporary basis. Factors that support a finding that a position may be suitable for temporary telework include:

• work activities are portable and can be performed effectively outside the office, at least on a temporary basis; telework may not be suitable if an employee's job requires regular in-person contact with other employees, clients or the public, or regular access to materials that cannot be removed from the worksite
• job tasks are easily quantifiable or primarily project oriented
• an employee's participation in a temporary telework arrangement will not adversely affect the performance of other employees
• contact with other employees and clients is sufficiently predictable
• technology and equipment needed to perform the job remotely are available
• safety and security of the employer and/or client property can be assured and is not cost prohibitive
• there are no contractual arrangements or client concerns or objections that would preclude teleworking

These factors should be evaluated and applied in a consistent manner to avoid potential claims of disparate treatment. Before reducing consideration criteria to writing and distributing to decision-makers, employers should consider that doing so may make it difficult to demonstrate in the future that granting an employee the right to work remotely under certain circumstances (i.e., when requested as a reasonable accommodation of a disability) will create an undue hardship for the employer.

At what point should we offer or implement temporary telework arrangements?

When considering when to implement temporary telework, an employer should balance the business impact against the benefits. Business impact is largely dictated by the nature of the business, the number of employees for whom such an arrangement is viable, and resulting administrative and/or legal compliance burdens. The benefits of implementation should be considered in the context of offering voluntary opportunities for temporary telework and situations in which the employer may decide mandatory telework (on a small or large scale) is necessary to ensure the health and safety of its workforce and broader community.

Voluntary Telework

The benefits of offering a voluntary temporary telework option include:

• proactively minimizing the risk of widespread COVID-19 transmission through voluntary workplace self-isolation
• empowering employees to make decisions to manage related personal circumstances, anxiety, distraction and as a result, maintain or enhance employee productivity
• providing an opportunity to troubleshoot temporary telework arrangements and the impact on employees, managers and clients who aren't accustomed to working remotely before wide-scale telework becomes necessary from a health and safety standpoint

Employers who are unsure about implementing temporary telework arrangements may benefit from consulting with legal counsel to identify specific implementation challenges and strategies.

Implementing Mandatory Temporary Telework on a Small- or Large-Scale Basis

Given the rapid progression of the COVID-19 outbreak, the potential implications for employee and community health and safety, and the potential impact on business operations in the event of a large number of employees falling ill at the same time, it is wise for employers to anticipate the possibility of having to implement mandatory temporary telework. Single case or small-scale arrangements may be appropriate for employees who have been exposed or potentially exposed to COVID-19, either inside or outside the workplace, including employees who have traveled to U.S. Centers for Disease Control and Prevention (CDC)-designated Impacted Regions.

As the outbreak progresses, large-scale implementation may be advisable or required to manage risk in response to directives from clients, building owners, or local government and health officials. Employers also need to weigh the benefits of a temporary telework arrangement from a business impact standpoint versus placing an employee on leave, whether part-time arrangements may work or whether certain controls can be put in place to enhance viability. Being flexible and creative may help employers identify temporary modifications and exceptions to established work protocols and policies.

How do we adequately monitor temporary telework to ensure performance expectations are met?

Open and ongoing communication between teleworking employees and their supervisors is key to a successful temporary telework arrangement. Employees and supervisors should be directed to work together to keep one another apprised of events or information obtained during the working day. Employees should be directed to communicate with their supervisor to identify in advance, and on an ongoing basis, any job duties or responsibilities that cannot be effectively performed during temporary telework. Employees also should be encouraged to promptly notify their supervisors in the event that personal circumstances, such as illness or dependent care responsibilities, interfere with their ability to fully perform their job duties. Modifications to work hours, work responsibilities and/or work deadlines should be considered and adjusted as the employer deems appropriate. Employers also need to ensure that teleworking employees have access to the necessary equipment and/or remote access approvals.

What are the implications of temporary telework for compliance with applicable wage and hour laws?

Wage and hour law compliance considerations are different for exempt and non-exempt employees, as defined under the Fair Labor Standards Act (FLSA) and applicable state laws.

Exempt (Salaried) Employees

Under the FLSA, and subject to applicable state laws, exempt employees must be paid in full for any workday in which they perform any work. Exempt employees must also be paid in full for any workweek in which they perform any work, if they are available but not permitted by the employer to work the full workweek (as in the case of an employee is not ill and available to work, but who is sent home because of potential exposure to COVID-19). Accordingly, employers should communicate clearly with employees, in writing, if the employer does not want the employee to perform any work on a given workday or workweek. Employers should also anticipate that some exempt employees may have sufficient capability to perform some of their work duties remotely, but not all of their duties. In such cases, employers may consider whether there are any special projects that would add value to the business and can be assigned to employees who are being paid for a full workweek but may not have a full workload as a result of teleworking. In addition, depending on the nature of the work performed, an employer may be able to implement an arrangement where an employee works every other week as an alternative to not permitting the employee to telework at all. Requiring the use of paid time off, and advancing leave accruals if possible and appropriate, may also be options employers can use to supplement partial telework arrangements.

Non-Exempt (Hourly) Employees

Non-exempt employees are only paid for hours worked, but must be paid for all hours worked, including for any overtime incurred under the FLSA and applicable state law. Assuming a non-exempt employee's work can be performed remotely, employers should communicate clearly with employees, in writing, the employee's work hours and schedule, including any lunch or rest breaks. Employers should continue to follow their regular policies prohibiting overtime work by non-exempt employees without supervisor approval and provide clear instructions for time recording.

What are the options for employees who hold positions that aren't suitable for telework?

For the reasons discussed above, many positions may not be suitable for temporary telework and modified work duties or special assignments may not be appropriate. Employers may still have options that support ongoing business operations and ease the burden on employees of having to take unpaid leave. Potential options for consideration may include:

• moving or reassigning work stations to minimize close contact between employees
• staggering work shifts for employees that do not generally perform time-sensitive work to minimize close contact between employees
• implementing a voluntary rotating, limited hours/duty schedule for employees holding the same position, so that all employees have the opportunity for some amount of continuing work hours (and pay) at the worksite, but with very few others at any given time

In the absence of any viable options, paid and unpaid leaves of absences will need to be considered. In certain states, employees may be eligible for unemployment insurance benefits under such circumstances. Employers should evaluate if it may be beneficial to classify an unpaid leave as a temporary layoff, keeping in mind federal and state laws that impose employer obligations in the event of layoffs or worksite closures.

How will the parameters and expectations for a temporary telework arrangement be communicated to employees?

Employers anticipating that they will likely implement telework arrangements in the weeks ahead should consider prompt development of a temporary telework policy to give employees and managers time to raise questions before undertaking temporary telework. Key points to address in such a policy include:

• approval process for temporary telework arrangements
• not all positions are suitable for telework
• employer's right to modify or discontinue the arrangement immediately upon written notice at the employer's discretion
• expectations regarding work output and productivity, employee availability and communication, and work hours
• an employee's obligation to keep the employer apprised of disruptions to the telework arrangement, including for illness or family/personal obligations
• protocol for evaluating employee in-person participation in pre-scheduled or future work meetings and events
• legal compliance issues such as time reporting and approval for non-exempt employees
• confidentiality and security requirements and expectations to protect the employer property and business interests of the employer and clients
• employer (and client, if applicable) policies and rules remain in effect unless employees are notified otherwise
• expectations for maintaining a safe remote workspace
• key differences between the temporary policy and ongoing telework arrangements utilized by the employer, if any

In the event sustained periods of telework are required, employers may also want to have employees sign a telework agreement that includes terms and conditions generally applicable to ongoing work arrangements, such as those relating to tax and insurance obligations.

For further information about forming a temporary teleworking program or if you need assistance in drafting related policies, please contact the author or another member of our Labor, Employment and Benefits Group.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.