2021 Employment Practices Update Volume 1: Remote Work- a need to formalize?
At the beginning of each year, employers should always re-assess the various employment practices they've implemented and have followed to ensure those practices remain compliant or are in need of some revisions.*
Every year various pieces of legislation, both at the state and federal levels, are passed, revised, or judicially interrupted impacting the processes employers have followed and now they must make necessary revisions to maintain compliance. However, the major change in 2020 for employers, in addition to those changes due to the various legislatures, was the seismic shift on the way employees work. Employers need to evaluate and assess what they did around remote work, what they want to do with it going forward and what they may need to do to maintain compliance?
At the start of the pandemic and mandatory shutdowns, most employers had to act quickly, and sometimes haphazardly, to rapidly adjust for the need for employees to work remotely. Compliance was not top of mind and often disregarded to ensure speed. Few employers had an existing or robust remote work process at that time, while some did not even entertain remote work for its employees while others only allowed 'work from home' for unusual or infrequent circumstances such as a sick child.
Remote work for employees can either be identified as always working remotely, or in a hybrid arrangement combining both remote work and in-office presence, or offered on an individualized basis based on employee need and/or position. One thing is sure: remote work, however it's rolled out, is here to stay.
What should employers know about how to manage it?
Employers should establish a remote work policy outlining their guidelines for the program
Ensure that their guidelines work within the particular employer's work environment(s) and know that the guidelines can differ based on position or location
Make the guidance a part of the Company's handbook and ensure that it's distributed to all employees
Employers must apply their guidelines consistently however, there are instances where certain positions cannot be accommodated. In those circumstances, ensure that an evaluation was conducted and the Company's decision was based on a 'legitimate business reason' as well as applied consistently.
Employers should also ensure that their assessments and decisions regarding remote work are compliant with the Americans with Disabilities Act (ADA) and that remote work could be considered a reasonable accommodation under the Act in some circumstances.
Employers should identify a specific person or group (Remote Work Leader) that is responsible for the Company's remote work program and its processes. This role is not an administrative function alone but, oversees the transformative nature of remote work in the workplace as it intersects with the Company's future attraction of talent.
Employers should assess their employment practices and make the the adjustments necessary on how they plan to address remote work within their Company post-pandemic.
*Employment Practices are those processes or customs followed around hiring and employee workplace conditions that can expose an employer to risk and liability.