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Law360 (May 27, 2020, 5:12 PM EDT )
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| Oliver Yee |
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| Alysha Stein-Manes |
Confronted with a compulsory and dramatic change to workplace operations, public agencies understandably had little time to strategically plan for the operational impacts of remote work.
This recent proliferation of remote work has highlighted the need for public agencies to adopt remote work programs, and corresponding policies and protocols that support efficient, flexible and safe work environments. In addition, such operational realities have required agencies to consider the legal implications of such arrangements, including occupational safety.
Even as stay-at-home orders are or will be slowly lifted and public agencies begin to return their employees to agency work sites over the coming weeks and months, they should expect remote work arrangements to endure as the new normal, making the need for formal telework programs and policies even more necessary. In addition, it may be efficient and effective for agencies to consider adopting permanent telework or remote work programs that survive beyond the conclusion of the current public health emergency.
Lessons Learned from Emergency Transitions to Remote Work and Best Practices Moving Forward
As we look back, and also forward, there are important lessons to take away from this extraordinary operational shift that may, in turn, help better equip agencies for the challenges that lay ahead in this new remote work reality.
Remote workspaces must be conducive to working.
While stay-at-home orders effectively forced agencies to permit employees who could work remotely to do so, as a general rule, remote work is not a permanent substitute for child care.[1] Furthermore, a bed, couch or a workspace that is so small or cluttered that it constitutes a fire hazard, is not a proper workspace.
Instead, such workspaces invite workplace injury and workers' compensation claims, as discussed further below. Employers that continue to permit employees to work remotely should strongly consider requiring safety inspections of remote workspaces.
Specifically, employees should provide a description and photograph of their workspace, or an agency representative can conduct a safety compliance inspection via videoconference. Employers should also develop safety compliance checklists for the remote workspace. Such practices will not only help employee productivity, but enforce safety standards.
Not all jobs are conducive to remote work.
During the stay-at-home orders, some agencies were able to arrange for front-office staff to work remotely by, for example, forwarding calls to the staff members' cell phones. Some police departments permitted detectives or investigators to work remotely by conducting interviews via Zoom.
While such arrangements may be manageable on a short-term basis, certain job duties are generally not conducive to permanent remote work. As agencies consider whether to continue to permit certain classes of employees to work remotely, they must examine the full scope of employees' job duties to determine if remote work is feasible and effective as a permanent or long-term option.
Telework and remote work policies and agreements are necessary.
Almost immediately following the closure of facilities and work sites, many public agencies implemented telecommuting/remote work policies and agreements.[2] Implementing telework and remote work policies and agreements is critical to ensure that employees understand work expectations in a remote work environment.
Through such policies and agreements, employees acknowledge and consent from the outset of their remote work arrangements that they have the same job responsibilities and are subject to the same workplace standards as if they were at the worksite, including but not limited to codes of conduct; anti-harassment policies and protocols governing communications with supervisors; reporting of hours worked; meal and rest breaks; approval of overtime; and reporting of work-related injuries. Policies and agreements are also critical to ensuring that standards for remote work are applied consistently across each agency.
Employee accountability measures and protocols are critical to success.
Agencies should implement measures to ensure that employees are held accountable for their work performance. Performance expectations should be clearly communicated and agencies should require supervisors and subordinates to participate in regular check-ins. Such oversight and communication are critical to continuity of effective operations.
Remote work arrangements are a privilege that should generally not be afforded to all employees.
Before COVID-19, employers may have thought of remote work arrangements as a privilege, not a right. Often, this meant that employers conditioned remote work agreements on an employee's continued productivity and a recent history of satisfactory performance.
During the current public health crisis, although many employees working remotely were on notice that their employers expected them to maintain productivity and comply with agency policies and protocols, some employees with past performance issues continued to manifest those same issues in remote work environments.
As remote work transitions from an operational necessity to an agency preference, agencies may establish eligibility requirements for remote work based on performance. For example, remote work may be limited to those employees who had two cycles of a "meets expectations" overall rating or at least one cycle of an "exceeds expectations" overall rating.
Managing Workplace Safety in a Remote Work Environment
With more employees working from home, there will likely be an increase in workers' compensation claims arising from work-related injuries occurring in the remote work environment.
For example, California's workers' compensation statute defines an employee eligible for workers' compensation benefits as "every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed."[3] As this definition does not condition an individual's eligibility on location, injuries may be compensable if the injury arises out of or in the course of employment regardless of where the injury occurred.[4]
Determining whether an injury arises "out of and in the course of employment" in a remote work environment can be complicated and requires a fact-specific inquiry.[5] For example, in Toohey v. Workmen's Compensation Appeals Board, the California Court of Appeal held that the injuries an employee sustained while grabbing his lunch from his car during an employer-authorized beer break was incurred during the course of employment.[6]
In another case, Kidwell v. Workers' Compensation Appeals Board, a California state traffic officer injured her thumb at home and off-duty while practicing for the standing long jump, which was part of the physical performance program fitness test required by her employer.[7] The California Court of Appeal held the employee was entitled to workers' compensation benefits, reasoning that even though the employee was at home and off-duty, practicing for the standing long jump was a reasonable expectancy of her employment.
Agencies should anticipate workers' compensation claims that specifically arise from a remote work environment: for example, tripping over a computer cord and sustaining injuries; getting burned while making coffee or lunch during a scheduled (and mandated) lunch break; or sustaining ergonomic injuries because the employee is not using a proper desk or desk chair. Agencies should look to their state-specific labor laws and court interpretations of those laws to determine how to treat work-from-home injuries for purposes of workers' compensation liability.
As state and local governments lift stay-at-home orders, the state of workplace operations as a whole remains uncertain. But, to some degree, telework and remote work is here to stay for the long run. By adopting telework and remote work policies and protocols, and anticipating legal risks and considerations, agencies can successfully prepare for this new normal.
T. Oliver Yee is a partner and Alysha Stein-Manes is an associate at Liebert Cassidy Whitmore.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] The Families First Coronavirus Response Act ("FFCRA"), passed into law on March 18, 2020, amended the Family and Medical Family Leave Act (FMLA) by providing FMLA Public Health Emergency Leave ("EFMLA") and Public Health Emergency Paid Sick Leave ("EPSL") to employees for certain coronavirus-related reasons. Specifically, the FFCRA permits an employee to take EPSL and EFMLA if the employee is unable to work, or "telework," because the employee needs to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. On April 1, 2020, the U.S. Department of Labor ("DOL") issued temporary regulations concerning the paid leave provisions of the FFCRA. (29 C.F.R. §§ 826.10-826.160.) The DOL's regulations clarify that an employee may take intermittent EPSL and EFMLA for this reason if the employee and the employermutuallyagree to such intermittent use. (29 C.F.R. § 826.50.) In other words, both the FFCRA and the DOL's regulations clarify that a remote work arrangement is not meant to be a solution to childcare issues. Furthermore, even if EFML or EPSL is not available, state law, and likely agency policies, may permit employees who need to take time off to care for an ill family member or for other family-related reasons to do so. (See, e.g., Cal. Gov. Code, § 12945.1 et seq.).
[2] State labor laws may require that public agencies negotiate with labor unions over the adoption of telework policies during the public health emergency, or at the very least negotiate the impacts/effects following adoption of those policies. For example, in California, there is an obligation under the Meyers-Milias-Brown Act ("MMBA") (Gov. Code § 3500, et seq.) for agencies to put employee organizations on notice of anticipated utilization of the Government Code section 3504.5's emergency exception to adopt these policies and protocols, and an opportunity to bargain as soon as practicable after the implementation of the policy and associated protocols. Agencies subject to other collective bargaining statutes without emergency exceptions, such as Educational Employment Relations Act ("EERA") agencies, provided the opportunities to bargain as soon as possible.
[3] Cal. Lab. Code, § 3351.
[4] E.g., Cal. Lab. Code, §§ 3208-3208.4; see also, e.g., Kidwell v. Workers' Comp. Appeals Bd., et al.,
(1995) 33 Cal.App.4th 1130, 1132; Wood Pontiac Cadillac v. Superior Court (1992) 5 Cal.App.4th 810, 813-814. Other states' labor laws may have similar provisions.[5] See, e.g. Kidwell, 33 Cal.App.4th at 1132.
[6] Toohey v. Workmens' Comp. Appeals Bd.
(1973) 32 Cal.App.3d 98, 101-102.[7] Kidwell, 33 Cal.App.4th at 1132.
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