Remote Work: Reminders Beyond the Pandemic

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As the COVID-19 vaccine rolls out to bring the pandemic under control, many employers are reimagining the future of their traditional workplace—and the future includes remote work! A recent study estimates that 25-30% of the workforce will continue to work remotely multiple days a week by the end of 2021.

Whether teleworking has long been a facet of your company’s culture since before COVID-19, or whether it has now become a staple of your operations because of COVID-19, the following five tips will help you meet the permanent teleworking needs of your workforce—without losing focus on legal compliance.

Document, Document, Document

Even as remote work generates paperless trails, remember to keep regular and complete records of critical workplace decisions. Technology tools like Slack and Microsoft Teams can be used to keep records of employee communications and activities that may be vital to a workplace investigation. Take the time to save (and backup) digital records that substantiate disciplinary actions, and don’t skimp on maintaining up-to-date personnel files, even if they are digital. Contemporaneous notes about workplace disputes should be dated, saved, and preserved on a regular basis. These are all important “documents”  to help employers not only make their decisions regarding hires, promotions, and fires, but also defend them in court.

Stick to Schedules

The temptation for remote work is to allow work schedules to be more fluid, especially for workers with children for whom childcare and school remains limited during the pandemic. It remains important, however, to communicate clearly and often about your expectations for workers’ schedules. Overtime rules under the Fair Labor Standards Act must still be observed for hourly and salaried, non-exempt employees, so written time-keeping policies and procedures are important for ensuring accurate time records. Knowing when an employee is “off-duty” can have a big impact on an employer’s liability for things like workers’ compensation claims and employee misconduct. Of course, employee morale and productivity can also take a hit if employee work schedules lead to burnout.

Foster Feedback

In the absence of the in-person encounters a physical workplace can offer, your employees may be feeling disconnected from the culture of your company. It is more important, now than ever, to manage workers with a focus on inclusion. To accomplish this, consider gathering regular feedback from workers, whether through regular surveys, weekly staff meetings, or one-on-one check-ins with your team. This may take more time, but such proactive communication can help identify issues before they become litigation risks that might otherwise be hidden from sight and allowed to fester (and worsen) in a remote work setting.

Take Time for Taxes: Ask Employees to Disclose Their Remote Work Location

Allowing employees to work remotely can inadvertently create a taxable event for employers. When employees work in a state different from their employer, a “nexus” may be created that may obligate you to pay that state’s payroll, income, sales, and other taxes, and even file a tax return in another state. Several states have provided guidance and waivers of their nexus rules during the COVID-19 pandemic, but, unfortunately, Virginia and North Carolina have not provided any such guidance or waivers.When crafting remote work policies, it can be helpful to require employees to first seek your approval if they desire to work out of state so that you can control your tax obligations. Otherwise, an employee physically working outside of the Commonwealth might be subject to payroll tax withholding in another state depending on how often the employee works outside of Virginia. This could also impact an employer’s liability for state unemployment taxes and workers’ compensation. And just because an employee is working from home, remember that under the Family Medical Leave Act, an employee’s home does not count as a separate “worksite.” This means that teleworking most often will not affect an employee’s eligibility for FMLA leave.

Be Mindful of Multistate Requirements

Employers who now find themselves with employees working remotely in multiple states should check their handbooks for compliance across state lines. This is especially true in emerging industries and for tech-based companies that hire at a rapid pace all over the country. A single hire of an employee who works remotely from a state with more protections for employees (i.e., western states like California and Washington, and northeastern states like Connecticut and New York), can invite a multitude of new obligations for employers. For instance, Virginia does not yet mandate employers to provide training on the prevention of sexual harassment in the workplace; but states like Connecticut do, regardless of the employer’s size.

In general, there continues to be a wave of laws across the country that recognize employee’s workplace rights. Virginia is no exception: Since the sweeping employment law changes in Virginia during the 2020 General Assembly, even small employers in Virginia are now required to update their handbooks with respect to the protected classes of gender identity and sexual orientation, as well as disability and lactation accommodations, among other things.

The global pandemic has created an opportunity for employers everywhere to adapt and stay agile with the changing needs of its workforce. As mid-Atlantic employers prepare for teleworking to remain a permanent part of their culture, Sands Anderson’s employment and tax teams stand ready to assist.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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