Remote Work Policies Should Now Stress Flexibility

​Organizations are implementing remote-work arrangements for their employees due to the COVID-19 coronavirus outbreak—many for the first time—and need to be able to outline expectations and guidelines for working outside the office.

Generally, remote-work policies cover eligibility, working expectations, legal considerations and technology issues, but, during these extraordinary circumstances, flexibility is paramount.

We're undergoing one of the biggest changes in history in how people work, said Brian Kropp, chief of research in the HR practice at Gartner, a research and advisory firm in Arlington, Va. "We have a set of people who have never worked from home who are now doing it full time. We also have a set of managers who have never managed people working from home. Under these circumstances, the policies shouldn't be thought of as managing productivity, but more a set of guidelines and norms for people managing and working in a brand-new way."

Kropp said that employers should design their remote-work policies around outcomes, not workflows and processes. "The idea is that employees are expected to accomplish their goals, but how they do it and when they do it is flexible."   

Just applying a traditional telecommuting policy to all workers during this unprecedented situation will lead to problems, Kropp said. "Look at your current policy and see what makes sense in this situation, and, if you're not sure, lean toward flexibility and trust as opposed to measuring and monitoring your employees. If employees are not given flexibility, it will be harder for them in their personal lives and they will feel that they are not trusted, which will come back to bite the organization when we come out of this."

Gregory Abrams, an attorney in the Chicago office of Faegre Drinker, said that being flexible with remote workers right now is not only good management practice but necessary, considering the quickly changing legal landscape.

"Clear policies are always advisable, but employers must be ready to adjust quickly as circumstances change," he said, noting that new Department of Labor guidelines could affect remote work. "Policies should clarify that expectations are subject to change quickly and unexpectedly given the current climate."

With flexibility as a guide, there are certain core elements of working from home that should be addressed in a written policy.

[SHRM members-only HR forms: Temporary Telecommuting Policy]

Define Eligibility and Duration

First, companies should define whom the policy covers and when it applies, as some workers may still be required to be at the worksite and others may not be able to work remotely. Employers may want to clarify whether the policy is only in effect during the coronavirus-related shutdown.

Kropp advised employers not to promise a definitive date to return to the office or termination of the telework policy due to general uncertainty about the duration of COVID-19.

A remote-work policy should include a clause that it may be discontinued at will and at any time.

Working Expectations

Experts agreed that evaluation of remote workers' performance should focus on work output and completion of objectives rather than on time-based performance.

"There are managers that think their employees are sitting at home watching TV all day instead of in front of their laptop working," Kropp said. "The mistake that these managers make is that they are confusing a remote-work policy with a performance management problem. The same employee who sits in front of the TV all day instead of working was probably already not working to his full potential in the office. That employee is not engaged, or the manager is not effectively providing direction."

An appropriate level of communication between employees and their managers should be spelled out in the policy, including expectations of availability, responsiveness and what modes of communication are to be used.

"When you're not meeting with team members in person, creating processes for collaboration and communication are key," said Rebecca Corliss, vice president of marketing for Owl Labs, a Boston-based telecommunications company. "Consider what types of communication tools work best in situations like manager one-on-ones, team all-hands meetings or employee learning and development activities."

Kropp said that, traditionally, there has been an expectation that video calls and meetings from home would be professional and "office-like." Companies are realizing that can be difficult with what's going on now, he added. "A lot of workers are parents with kids at home or taking care of an older parent. A kid will show up crying during one of your WebEx calls. It's going to happen, so companies are relaxing the constraints around what 'professional' and 'office-like' means. Obviously, you can't walk around in your underwear during a video call, but 'appropriate' rather than 'office-like' is a better way to show understanding of the struggles everyone is experiencing."

Legal Issues to Consider

Remote workers are entitled to the same legal protections that in-office workers have, Corliss said. "Working remotely can present some added challenges that need to be addressed to ensure your company is legally compliant," she noted.

One of the most obvious compliance areas to address with remote employees is recording the hours of workers not exempt from the overtime requirements of the Fair Labor Standards Act (FLSA).

Employers must ensure that hourly employees know "the number of hours they are expected to work, what they should do if they need to work outside of scheduled work hours, how to report time, and how to communicate about unanticipated overtime," Abrams said. "There are legions of cases where nonexempt employees allege that they worked off the clock while at home, and you can see a similar scenario playing out during this crisis."

The policy should be clear that all nonexempt telecommuting employees are required to accurately record all hours worked using the employer's time-keeping system. Hours worked in excess of those scheduled per day and per workweek should require the advance approval of a supervisor. But even if employees are instructed not to work more than 40 hours a week, they still must be paid overtime if they do.

"Set up a process to report hours for hourly remote workers," Corliss said. "To avoid high overtime costs, select times that employees should and shouldn't be working. With clear guidelines, they won't be able to work outside of these hours unless they have permission from their manager. This makes it easier to avoid employees accidentally working more hours than intended."

Abrams added that states have various laws about meal breaks, rest breaks, and how many consecutive hours one can work, and remote work policies need to be mindful of those as well. There could also be Americans with Disabilities Act issues, he said, if accommodations need to be made for remote workers.

Employers are also responsible for remote workers' health and safety. Some companies prefer or require an employee's remote work environment to be approved prior to working remotely.

Injuries sustained by an employee in a home office location and in conjunction with his or her regular work duties are normally covered by a company's workers' compensation policy. Remote employees are responsible for notifying the employer of such injuries as soon as possible.

Technology and Supplies

Remote workers need the right tools to complete their work. Employers need to be clear about what equipment and resources they will provide, whether laptops and videoconferencing tools or payments for office supplies, phone calls, shipping and home-office modifications.

Who pays for home technology is up to the company, but a policy should set expectations to make sure everyone is on the same page, Kropp said. "Both employees and employers must agree on what each is expected to deliver. For example, some companies will pay for high-quality home Wi-Fi, and others are expecting that the worker already have it at home."   

For many employees, a laptop and a Wi-Fi connection might not be enough, Corliss said. "You'll also need policies and tools in place for remote team collaboration and communication, like live chat, synchronous screencast recording, live video conferencing and more to ensure technology doesn't get in the way of an effective and meaningful work relationship. Slack and Google Hangouts can act as a virtual water cooler, where employees can discuss the status of a project but also debrief on TV shows, share GIFs and bond over their favorite music."

Companies also should specify the level of tech support they will offer to remote workers and outline what remote employees should do when having technical difficulties.

Employers need to pay extra attention to securing the technology their remote workforce is using. The COVID-19 pandemic is providing plenty of new opportunities for cybercriminals to exploit unsecured technology systems, overworked information technology (IT) staff and panicked employees who are new to working from home.

"In the course of developing communications to employees, examine existing policies closely, such as confidentiality, information security, business continuity, BYOD," said Joseph Lazzarotti, an attorney in the Morristown, N.J., office of Jackson Lewis. "If companies have specific requests, for example if they don't want employees working on public Wi-Fi, then that should be stated in the policy."