With the COVID-19 pandemic in full swing, many employers are allowing employees to work from home in order to facilitate social distancing and ensure compliance with state and local government orders. It is important that employers document their policies with respect to employees who telecommute to limit potential liability and make sure that expectations are clearly communicated. To that end, here are five key considerations that should be taken into account when drafting a telecommuting policy.
Regular Working Hours and Availability – The policy should provide specific working hours (e.g. 9:00am to 6:00pm) during which the employee must actively carry out his or her job duties. In the event that an employee’s responsibilities may extend outside of regular working hours, this should be stated as well. If you need a particular group of employees to be “on call” during certain times, there should be a schedule that is readily available and explicitly referenced in the policy. Finally, make sure that you clarify how employees should communicate with one another. You may want to specify that employees must be reachable by telephone, fax, e-mail, skype, Microsoft Teams, or any other platforms that are regularly used in your workplace. It may also be helpful to have employees provide their current contact information so you can update your employee directory.
Equipment and Worksite – The policy should state that it is the employee’s duty to provide any necessary furniture and equipment in order to work from home. In the event you allow employees to take company property home, such as a laptop or monitor, you should clarify that such equipment must be used exclusively by the employees (no friends or family) and solely for the purposes of conducting company business. You should also state that the equipment remains the sole and exclusive property of the company and must be returned in the same condition when your employees return to work.
Confidentiality –The policy should have language concerning an employee’s duty to keep company information confidential and the general level of care expected while employees are working from home. At a minimum, employees should be required to exercise reasonable caution, and abide by the same security protocols that are in place while working at the office. You should provide employees with contact information for your IT Department and/or your third-party IT contractor so that any issues or suspected security breaches can be quickly reported. Additionally, specific industries will require more robust language concerning confidentiality. For example, healthcare companies will want to cite to specific legal requirements such as HIPAA, while law firms may require that certain levels of encryption be used to guarantee that client information remains sufficiently protected.
Expense Reimbursements/Incidental Costs – The policy should clearly state which specific expenses, if any, you will reimburse for employees who work from home. For example, employees may incur additional costs for phone calls, internet access, or other means of communication that may be necessary to carry out their requisite duties. It is important to list any covered expenses, the procedure and required documents for reimbursement of such expenses, and the time frame within which an employee should expect to receive a reimbursement.
Integration with Normal Policies and Procedures – You should already have an employee handbook that contains all of your policies and procedures under normal working conditions. Your telecommuting policy should make it clear that the employee handbook still applies unless it is directly contradicted by the telecommuting policy, in which case the telecommuting policy controls. You may also want to include language clarifying that in the event of any conflict between the terms of your telecommuting policy and any applicable laws (including, without limitation, any and all state and federal rules, regulations, orders, directives and declarations relating in any way to the COVID-19 pandemic) that the applicable laws will apply.
Once you are satisfied with your telecommuting policy, you should have your employees acknowledge receipt by signing/dating the policy. By clarifying your expectations and parameters for employees who telecommute, you can mitigate risk, leverage new technology, and set your business up for continued success.
If you are an employer who needs assistance drafting a telecommuting policy, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice and reading or interacting with this website does not create an attorney-client relationship.
