3640.01 / What factors should an employer consider when determining whether to permit ongoing remote work arrangements?

Editor’s Note: While remote work arrangements are not entirely new, employers should be aware that issues involving remote work are newly in the spotlight for state governments. Because of this, issues involving remote work arrangements are continuing to evolve. Employers who are contemplating a remote work arrangement should be advised of this, and of the need to comply with state-level laws in all states where their employees reside and work—regardless of where the employer is physically located. Failure to comply could subject to the employer to fines, penalties and litigation in the state of the employee’s residence.

Many employers and employees have become accustomed to work-from-home arrangements and determined that in-person reporting to a physical office is no longer necessary. However, those employers who continue to permit remote work arrangements should know that most of the temporary relief that was put into place during the pandemic has expired. Now, employers will be required to comply with state-level laws and should consider implementing policies and procedures to ensure that remote work arrangements proceed smoothly.

When making decisions to permit remote work arrangements, employers must consider all relevant nondiscrimination laws, including the Age Discrimination in Employment Act, the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. Decisions to permit remote work must be made in a nondiscriminatory manner to avoid potential lawsuits under these laws and state-level equivalents.

Employers must also consider state-level wage and hour laws. They should consider developing programs to track employees’ work time, ensure that employees are paid for all hours worked (including overtime requirements) and to ensure that employees are provided with any legally required break time during their workday.

For many employers, confidentiality and data security are also an issue. These employers should take steps to protect customer information and other confidential information in the employee’s remote work environment (for example, by requiring data protection software).

Employers should implement clear policies and procedures that will be followed in determining when to permit remote work arrangements. They should also develop detailed procedures that will govern various aspects of the remote work arrangement. Those policies should address timekeeping requirements, expense reimbursement issues, any in-person reporting requirements, who is responsible for the employee’s work equipment and care, network security requirements and how equipment and documents will be returned to the employer upon termination of the working relationship.