Working Remotely During COVID-19 & Related Legal Issues
The COVID-19 outbreak has caused many state and local governments to issue shelter-in-place orders, also known as stay-at-home or isolation orders. The orders are intended to slow the spread of the virus and reduce the burdens on the health care system. As part of these orders, government officials have required non-essential businesses to close their offices and transition their employees to working remotely. Moreover, businesses in many areas that are not subject to government orders are transitioning to remote work as a precaution to protect the health of their employees.
This transition is not always easy, especially for employers and employees who are accustomed to the office environment and unfamiliar with working remotely. Employers will need to consider several factors when developing a remote work policy, and employees should take certain steps to maximize their productivity when working from home.
Developing a Remote Work Policy
Employers that are not subject to a government order will need to consider whether remote work would be feasible, considering the nature of their business. If it is feasible, adopting a remote work policy may boost employee relations, since many employees are likely worried about their health during the COVID-19 outbreak. Before setting up the policy, an employer should give their employees ample notice so that they can prepare. An employer also should determine which types of equipment and other physical office property can go home with employees. An employer may want to consider digitizing certain materials that are normally in physical form, since this may improve the efficiency of remote work. Security and privacy are important concerns during this process, so an employer may need to tighten or update security measures, such as passwords and log-in requirements. This may be especially critical if employees are working on their personal devices.
If an employer adopts a remote work policy, it will need to decide the form that the policy will take. Some policies require employees to work from home, while others simply recommend working from home. A policy may apply with equal force to all employees, or it may exempt certain essential employees whose work requires their physical presence at an office location. An employer might want to set up a schedule for remote meetings through video conferences, while placing limits on whether employees can meet with one another or with third parties. Some policies might require employees to maintain their usual working hours, while others might provide more flexibility. A policy also can address work locations, requiring the employee to work only in their home or providing certain additional locations in which they are permitted to work.
A remote work policy should either state a projected end date or provide for regular updates. Setting clear expectations, even if they change over time, will reduce uncertainty and confusion among employees.
In developing a remote work policy, an employer should make sure to comply with any government orders regulating businesses in its city, county, or state. Failing to comply could result in severe penalties, since many of these orders are strictly enforced.
Remote Work Guidelines for Employees
If an employee has settled into an office routine, adjusting to remote work may be challenging. Employees may feel stressed about continuing the same rate of productivity that they maintained at the office. This may not be possible during the COVID-19 outbreak, due to the need to care for loved ones, homeschool children while schools are closed, and handle other daily needs. Meanwhile, some employees may try to increase their productivity to “compensate” for working remotely, which can lead to burnout. A candid conversation between an employee and a supervisor or HR representative can help both sides set reasonable expectations and understand each other’s needs during this unprecedented situation.
To ease the transition, an employee may want to set up an office-like space in their home. This could be a virtual replica of their office or cubicle at work, or it could simply be a space that is not used by anyone else and contains only professional items. An employee also may benefit from setting specific goals and devising schedules to make sure that they stay on track. If they need assistance from a supervisor, they should feel free to ask. An employee should communicate regularly with their supervisor and colleagues. These conversations not only help keep tasks on track but also help shield individual employees from the psychological effects of isolation, boosting their morale.
Refusing to Go to Work
If an employer does not adopt a remote work policy, an employee generally does not have the right to refuse to go to work. This right applies only if the employee believes that going to work puts them in imminent danger under OSHA guidelines, which require a risk of death or serious physical harm. For example, requiring an employee to work with COVID-19 patients without protective equipment might meet this standard. These situations are rare, however, and most employees cannot refuse to go to work because they are worried about getting sick. An employer likely will be able to fire an employee if they refuse to go to the office when the employer requires their presence.
As discussed above, shelter-in-place orders apply to many areas of the U.S. If an employer requires an employee to come to the office in violation of a shelter-in-place order or another government directive, and the employee refuses, the employee may have a wrongful termination claim if the employer fires the employee due to their refusal. This is because employers are not allowed to fire employees for reasons that are illegal or counter to public policy. Since this area of law is constantly evolving, employees and employers in this situation should consult an attorney to understand their rights and options.
COVID-19 Legal Center Contents