Remote work is not new, but the COVID-19 pandemic transformed it from a rarity into widespread practice, and companies must now contend with numerous legal and administrative considerations as they adjust to the “new normal” of remote and hybrid workforces. Lindsey A. White and Mark J. Swerdlin, Partners at Shawe Rosenthal LLC, addressed such concerns in Employment Law Issues Arising from the Pandemic as Related to Managing a Remote Workplace, a program presented during Legal Excellence Week’s Corporate Counsel Institute. 

The presentation touched on numerous employment issues arising from the pandemic and the subsequent shift to remote work. Swerdlin noted that the desire to work remotely appeared before the pandemic, as people enjoyed the flexibility and lack of commute that comes with working from home. Further, many people feel they are more productive when they work remotely. However, the shift to remote work did not occur on a large scale until the pandemic, when government mandates made it a necessity, and employers soon learned that most employees could perform their jobs remotely. 

White discussed current statistics that show employees prefer to work from home, and that remote work creates a better work-life balance and increases productivity. People working remotely report less of a connection with their coworkers, however, and some workers prefer to work from an office. Others say they feel pressure from their employers or coworkers to be physically present, even though they can perform their jobs from home. 

White pointed out that, notably, employee preference for remote or in-person work differs based on social identifiers, with Black and Latinx workers being more likely to express fears of COVID-19 exposure in the workplace than White workers. COVID-19 concerns also vary by income, age, and gender. When employers discuss remote work, it is also important to be mindful of the digital divide, as people of lower socioeconomic status may not have access to smartphones, laptops, or desktop computers, while high-income workers virtually always own multiple devices that allow them to perform remote work. Access to good broadband internet is not a given for all employees either. 

Swerdlin then discussed the numerous general and legal considerations employers should evaluate when managing a remote workforce to ensure they comply with wage and hour, tax, employee benefit, and anti-discrimination laws. This means, in part, that they must be aware of where their employees are physically working, as the laws vary from state to state. Employers should also be mindful of their employees’ mental health status, privacy, and productivity and ensure they have the training and technology needed to complete their job duties remotely. Swerdlin noted that employers should determine whether they are obliged to provide accommodations for employees working from home, like ergonomic equipment. 

White noted that employers should consider diversity, equity, and inclusion when managing remote or hybrid workers as well. Specifically, remote structures may adversely affect groups like women and traditionally underrepresented economic and racial minorities who prefer hybrid options. For example, employers that are resistant to remote or hybrid options may unwittingly undercut their diversity, equity, and inclusion initiatives in favor of those workers who want to return to the office.  Hybrid and remote options may be beneficial in attracting the same groups, however. Remote options also attract working parents, people with medical needs, and people with economic or housing limitations.

White then moved to the topic of medical and religious accommodations for remote workers, reminding participants that the Americans with Disabilities Act (ADA) states that employers must make reasonable accommodations for qualified individuals with a disability, where those accommodations will allow them to perform the essential functions of their job or enjoy equal privileges and benefits of employment. The ADA covers both applicants and employees. There is no duty to request an accommodation without a request for one, but the request does not need to be in writing and can be made by a third party, such as a spouse. 

The ADA does not require an employer to excuse an employee from performing any essential functions of a job or hire another employee to perform those functions. Essential functions of a position are the basic tasks that are involved in a job. Tests used to determine whether a task is an essential function are whether the job exists to perform the function and whether there are a limited number of employees available among whom the performance of the function could be redistributed.

Swerdlin and White then discussed the question of whether telework is a reasonable accommodation, ultimately determining that it can be in certain situations. Factors employers should weigh when an employee requests telework as an accommodation are: whether the job can be performed remotely, how the predecessor performed the job, and whether there are security concerns regarding remote work. 

White noted that employers must also accommodate religious beliefs that are sincerely held unless doing so presents an undue burden. Religion is defined very broadly under Title VII and includes non-theistic and theistic beliefs. Beliefs can be covered even if they do not align with the employee’s religious group as long as they are sincerely held.

Swerdlin then advised employers asking employees to sign restrictive covenants to ensure that they are mindful of which jurisdiction’s laws apply and consider including choice of law provisions in their agreements to protect their interests. He cautioned, though, that some states have very strict laws regarding the enforceability of such agreements that may render them void. 

The session concluded with White discussing tax filing obligations for remote workers. She explained that physical presence in a state via an employee can establish a taxable nexus sufficient for a state to justify taxation. Nexus also permits a state or locality to impose a variety of taxes. Further, an employee can have two types of contact with a state – physical and economic. As such, employers should provide clear guidance to employees regarding remote work and know where their employees are located. Employers should also review the employment tax requirements for states in which their remote employees are located, and if an employee has connections with more than one state, the employer must determine which state(s) can impose withholding obligations.

You can access the entire Employment Law Issues Arising from the Pandemic as Related to Managing a Remote Workplace program and many other programs presented during Legal Excellence Week here. Additionally, all Legal Excellence Week weekly pass holders can access all of the programs offered at Legal Excellence Week on-demand for 90 days after the event!