By now, the majority of companies and their employees have found logistical solutions to make working from home possible during the COVID pandemic: Assets like computers or credit cards can be delivered by courier, for example, bedrooms have converted to home offices (and classrooms), and most everyone has upgraded their internet speed.
Scott Nelson, a leading employment lawyer specializing in Labor and Employment Litigation and Workplace and Employment Counseling, says he expects the current work-from-home situation, driven by the COVID pandemic, to stay around for a while. During this period, there have been many changes in the way employees work and in the employment laws covering them. “I have seen more changes in the last six months than in the last 25 years.”
A lot of confusion remains regarding which laws apply in this work-from-home reality. If an employee works from home in a different state than their previous office headquarters, which state’s tax laws apply? Do workers’ compensation laws apply if an employee gets injured by tripping on a computer cord in their home office? Legal, compliance, and HR teams have a lot of questions, and regulatory guidance is often vague.
The good news is, the same types of employment laws still apply - just in a different place, which may lead to different results.
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Which Laws Apply to Employees Working from Home?
Nelson suggests considering all the known employment laws and regulations that your company currently follows for employees working in the company office and then looking at those same types of laws in the jurisdiction where each employee is working from home. This may be a different city or a different state, so the applicable requirements for each employee may differ. It’s possible and even likely that companies could be subject to the employment laws in both their home office and their company office locations.
Nevertheless, all the typical types of employment laws still apply in a remote work environment. For example, if an employee currently has a back problem and the company gives the employee an ergonomic office chair at the company office as an ADA reasonable accommodation, the company may have a similar duty to provide an ergonomic office chair to the same employee who is now forced to work from home. Depending on the accommodation needed, the company may or may not need to buy the employee a second ergonomic chair for home, but it may need to send their ergonomic office chair to their home during the period the employee is required to work from home.
Types of Legal Challenges to Remote Work
Legal and compliance professionals have a broad scope of legal issues to consider in the current pandemic environment. Some of the biggest areas and questions are:
- Wage and hour laws: How do non-exempt employees manage timekeeping?
- Workers compensation laws: If someone trips and falls in their home office while working from home, should the company report it as a workplace injury?
- Tax laws: Differing states’ payroll taxes might apply to the same person.
- Local laws: E.g. Sexual harassment training is mandatory in New York
- Discrimination and retaliation laws: E.g. the CDC considers employees over 65 at higher-risk regarding COVID-19; but telling an employee to stay home for this reason could be age discrimination
- Health and safety laws: E.g. requirements regarding COVID-19 tests or employee temperature checks.
- Proprietary assets: E.g. how to ensure trade secrets and confidential information stay secure if employees working from home leave the company to work for a competitor
Each company has unique legal obligations to employees during and after the COVID pandemic, and it’s safe to assume the current WFH situation will last for a while. The need to confirm legal and regulatory compliance regarding employees working from home is more critical than ever.