Workplace in the Age of COVID
Obviously, the COVID-19 pandemic has reshaped the world. Everything from travel to exercise is different now. It has also had a major impact on employment law. Basic concepts — like the meaning of “workplace” — have been transformed. And while the pandemic may subside, many changes are likely permanent. Accordingly, employers should consider rethinking their employment practices and revising their policies.
The major driver of change has been the transformation of the “office” from a physical space to a remote environment knit together by Zoom, WebEx, etc. While this shift might obviate some workplace concerns, it makes others more challenging.
For example, take the fraught issue of worker classification; i.e., whether a worker is properly classified as an employee or an independent contractor. An employer may think that, since certain workers are fully remote, the company is more likely to get away with classifying them as independent contractors. But the U.S. Department of Labor will still analyze whether the work is subject to sufficient company control and, if so, may determine that the workers should still be classified as employees, even if using their own personal laptop. Employers must remain mindful of their workers’ work conditions, including the nature and extent of the supervision they receive, which is challenging in a non-office setting.
Remote work has also created new problems. For example, while an employer may be located in one city or state, the laws of different jurisdictions may cover the company’s remote workers (and the terms and conditions of their employment), depending on where the workers are located. Such laws can cover anything from wage-and-hour requirements to rest breaks, taxation, workplace safety, accommodation (and definition) of disability, benefits, and more.
Working remotely also introduces new concerns regarding workplace safety and security. What if employees injure themselves during the remote workday? Is the employer liable for an unsafe workplace? How does a company ensure data security when employees are logged in from multiple locations, with varying degrees of security protections?
Additionally, while it may seem that the remote environment reduces potential problems involving discrimination and sexual harassment, new concerns arise. For example, an employee’s home background during a Zoom call may reveal a religious symbol, books on a controversial topic, or children heard in the background. A terminated employee may claim the employer was motivated by what a supervisor saw or heard on camera. Or a colleague might claim that the books were offensive or created a hostile work environment. Of course, the means of sexual harassment via remote technology are nearly limitless. While allegations of discrimination and harassment are still assessed by the same legal rules and standards, remote work provides new ways for employers to find themselves in legal hot water.
The key to addressing these issues is the same as it was before: clear workplace policies.
Employer workplace policies must be updated to account for remote work and the unique challenges it brings. Clear policies not only help employees navigate tricky situations in the workplace, but they protect employers from potential liability. In many cases, whether an employer will be found liable for an employee’s workplace misconduct depends on whether the employer has policies in place prohibiting the misconduct, has clear guidelines for making complaints if such misconduct occurs, and takes appropriate steps as soon as it becomes aware of misconduct.
The legal issues raised by remote work are complex and fluid. Some are old issues with a new dimension; some are entirely new. Companies should review them with an attorney. One thing is for sure: remote work isn’t going anywhere. By adapting to these new circumstances, employers can minimize the risks and maximize the benefits of the brave new world of working — and managing — remotely.