COVID-19: Advice for Remote and Downsized Workplaces

March 24, 2020

Implementing Remote Work Arrangements

On March 23, Governor Baker issued an emergency order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public until noon on April 7. Essential businesses, such as grocery stores, pharmacies, healthcare facilities, gas stations, public transit, restaurants that offer takeout and delivery, and other essential operations will remain open while the advisory is in effect. A full list of essential operations can be found here. In addition, Governor Baker ordered the Massachusetts Department of Public Health to issue a stay-at-home advisory outlining self-isolation and social distancing protocols.
The Governor has also asked employers to implement a remote working system where feasible. We offer the following suggestions for remote work arrangements.

Scope:

  • Identify which employees are able to work remotely, and which are not.

  • Determine a preliminary end date to the policy, and notify employees in advance if it is to be extended.

Resources:

  • Identify the resources employees will need to telecommute effectively, including for example, access to company information systems, laptops, desktop computers, phones, printers, chargers, office supplies, and virtual meeting platforms.

  • Determine whether the organization can provide employees with the resources required for them to work remotely or whether they must use personal devices.

  • If employees are permitted to use personal devices to perform work, consider whether to implement safeguards to protect against the misuse or disclosure of confidential information.

  • Communicate with employees about which physical items and information may be taken from the workplace or accessed remotely. 

  • Consider scanning any relevant physical documents so that they are accessible electronically.

Managing Performance:

  • Set expectations regarding how frequently employees should communicate with supervisors, and how and when meetings will occur. 

  • Many employees are juggling the demands of parenting children who must remain home from school and daycare. Consider whether your policy is sufficiently flexible to permit employees to meet these personal demands while continuing to work. Starting April 2, the Emergency Family and Medical Leave Expansion Actwill require many employers to provide paid leave to parents who must remain home to care for children and who are unable to telecommute.

  • Remind employees that the organization’s policies remain in effect and that a failure to adhere to them may result in corrective action.

  •  The organization’s electronic communications policy should expressly state that employees have no expectation of privacy when using the organization’s computing or other resources.

  • Over time, remote employees may begin to feel disconnected from their employer and their colleagues. Consider ways to connect with employees and to nurture their connection to one another, whether that includes daily meetings, frequent phone calls or texts, or other activities.

Timekeeping:

  • Maintain and regularly verify records of hours worked for remote, non-exempt employees. 

    • Ensure that employees understand that they must continue to record and report working time.

    • Remind employees that overtime should be authorized in advance.

  • Communicate with employees about agreed-upon hours of work and refrain from emailing or calling non-exempt employees outside of agreed-upon hours to avoid claims for overtime compensation.

Confidential Information:

  • Remind employees of the organization’s policies regarding confidential information and their role in safeguarding it, especially while working remotely.

  • Establish procedures to track and recover any confidential information an employee removes from the workplace.

  • Take steps to protect trade secrets and other confidential information with remote employees, for example:

    • Require remote employees to use secure remote access procedures like a Virtual Private Network (VPN); or

    • Train remote employees on information security policies and practices

Workers’ Compensation:

  • Remote employees may be eligible to receive workers’ compensation for injuries or occupational illnesses that occur at home if the injury or illness arises out of and in the course of employment. 

  • Where feasible, employers should define each employee’s job duties, work area, work hours, and break times to avoid liability for injuries that are not work-related.

  • Remind employees that:

    • Workers’ compensation does not apply to injuries to any third parties or members of the employee’s family on the employee’s premises; and

    • Remote employees should report any job-related injury to their manager as soon as possible.

Note: The EEOC has found that telecommuting, if not an undue burden, can qualify as a reasonable accommodation for individuals with certain disabilities. Employers that implement broad telecommuting policies in response to the COVID-19 outbreak may be unable to claim in the future that telecommuting as an accommodation constitutes an undue burden. If remote work arrangements are permitted only because of the COVID-19 outbreak and would not otherwise be permitted, employers should consider stating this in their policies.

Reducing operations:

For employers that cannot feasibly transition the bulk of their operations to a remote-based workforce, temporary or long-term reductions in operations or personnel might become a reality. The Commonwealth is permitting employers to retain employees while implementing a temporary shutdown or by reducing the hours of certain personnel: 

  • Under the Commonwealth’s Workshare program, eligible employers can divide available work between affected employees instead of laying off workers. The program allows employees to receive a part of their unemployment insurance (UI) benefits while working reduced hours.

Temporary Shutdown:

  • The Massachusetts Executive Office of Labor and Workforce Development and Department of Unemployment Assistance (the “Department”) filed emergency regulations (430 CMR 22.00 et seq) allowing workers who have been placed on “standby” status due to COVID-19 to temporarily  collect unemployment insurance. The state has waived the one-week waiting period that usually applies to unemployment claims. Employees can apply for unemployment here.

    • An individual has been placed on “standby” if they are temporarily unemployed because of a lack of work due to COVID-19, with an expected return-to-work date. The employee must: 

      • Be available for all hours of suitable work offered by their employer and 

      • Take reasonable measure to maintain contact with their employer. 

      • If an employee maintains contact with their employer, they are also exempt from work search requirements (i.e. conducting a certain number of job search activities per week).

    • Once an employee files for unemployment benefits, the Department will contact the employer to verify the employee’s standby status and return to work date. Employers may request that claimants be placed on standby for a maximum of eight weeks and provided the request is reasonable, DUA will allow it.

    • Standby status may be extended past eight weeks if there is an infection of COVID-19 at an employer’s business that causes them to close or severely curtail operations for a longer period of time.

  • If an employee is temporarily laid off, employers must pay them their earned wages that same day. The Frequently Asked Questions About COVID-19: Employee Rights and Employer Obligations issued by the Massachusetts Attorney General’s Office (“AGO”) also recommend issuing all accrued vacation pay on the same day an employee is temporarily laid off, although employees may voluntarily agree to save their accrued vacation for later use. If an employee exercises this option, employers should request written documentation from the employee confirming their choice. 

    • Although the AGO indicated it will not take action against employers who allow employees to save their vacation pay for later use for untimely payment of vacation pay, the AGO also notes that it does not have control over private litigation. When deciding whether to allow employees to save their vacation pay, employers should take into account the possible risk exposure they face from private lawsuits alleging violations of the Massachusetts Wage Act. 

    • Although it is unclear whether employees placed on standby status under the emergency regulations are considered temporarily laid off, we recommend that employers treat them as such for purposes of issuing earned wages and accrued vacation.

  • As a reminder, exempt employees who are placed on standby or temporarily laid off in the middle of the workweek must be paid for the entire week.

For further information, contact Kurker Paget LLC.