Whether the pandemic is actually over or we all just lost patience with it, it appears that society has largely returned to normal. Virtual events are giving way to in-person gatherings yet again, with most people delighting in a return to face-to-face engagement. Early in the pandemic, remote work was a necessity. Now, many businesses are returning workers to the office, but still dealing with individual employees who prefer to be remote workers. Remote work presents several management challenges. It can be difficult to keep remote employees engaged and monitor their performance. In addition, there are legal risks in remote work that employers need to address.
Remote Workers and the Fair Labor Standards Act (FLSA)
For non-exempt employees (i.e., those entitled to overtime pay under the FLSA), there are wage and hour issues. The FLSA requires employers to keep accurate records of nonexempt employees’ hours worked. Employers must have in place a reliable system to do that for remote workers. Supervisors also need to verify employees are working when they claim to be. Failure to address these issues on the front end can expose the business to significant risk under the FLSA and equivalent state laws regarding wages.
Remote Work as an Americans with Disabilities Act (ADA) Accommodation
If an employee asks to be allowed remote work based on a medical issue, the employer may need to analyze the request under the ADA. The ADA requires employers to offer reasonable accommodations for qualified employees with disabilities. Although not every medical issue is a “disability,” the term is defined broadly under the ADA.
Employers need to determine if an employee’s essential job functions can be performed remotely. If they cannot, that may be a basis for denying remote work. If the employer denies the request for remote work, the ADA requires the employer to engage in the interactive process with the employee to find a reasonable accommodation that will work. Employers have the final say on which accommodation will be granted and they do not have to grant an accommodation that would cause an undue burden.
Employers also need to be consistent. If remote work is allowed for one or more employees, then the employer will need to be able to defend a decision to deny remote work to another employee. Otherwise, the employer may be exposed to liability for disparate treatment under the ADA and other discrimination laws.
Risks of Out-of-State Remote Workers
If the employees are working remotely from a different state (or country) than where the business is located, the business may have tax, insurance, and other considerations to address.
Because these issues are fraught with legal risk, employers should consult their employment law counsel when considering remote work. The employment law attorneys at Woods Rogers Vandeventer Black are experienced with these issues and available to assist.
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