Many businesses have some experience with employees working remotely whether from allowing certain employees to telecommute, employees traveling for business, or otherwise. Until recently, though, very few California employers had 100% of their workforce working remotely. The COVID-19 pandemic has abruptly changed that. Today—and for the indefinite future—all California employers in “non-essential” businesses who are continuing their operations with their employees working from home are doing so in previously-uncharted territory.
This new landscape has a number of landmines that California employers must carefully navigate—and, also, some risks that apply regardless of the state in which your business is operating (and your employees are working). Here are a few:
Paid Sick Leave – Far More Complicated
In California, paid sick leave is determined by the location where the work is being performed. When your employees were working from your business’ physical office in San Jose, you only had to worry about the California paid sick leave laws. It didn’t matter where each of your employees lived. But now, if you have an employee working from home in San Francisco, and three others working from their homes in Berkeley, Emeryville, and Oakland, respectively, you must be familiar with and comply with the sick leave laws of San Francisco, Berkeley, Emeryville and Oakland. Other California cities with their own unique paid sick leave laws include Los Angeles, Santa Monica, Long Beach, and San Diego. This chart is a helpful resource for navigating city-specific paid sick leave policies.
Reimbursing Business Expenses
If your employees are continuing to work during “shelter in place” from their homes, they are in all probability using their own home internet to send emails, have video calls, and otherwise perform their work for you. There are obvious data security issues that this presents (see Section 8, below). But you, as the employer, also have to comply with Labor Code Section 2802. This statute requires an employer to “indemnify” (which means to reimburse and hold harmless) an employee for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” Therefore, if you as the employer are now requiring employees to work from home, and if working from home requires the employee to use his home internet and personal cell phone, you should reimburse the employee for the portion of his internet and cell phone that was used for business during this period. Or, you can adopt a policy and reimburse a flat fee amount (usually around $50-$75/month for each) that you are certain adequately covers the expenses that were business-related. Whichever way you go, ask for billing statements and ensure that your policy is paying the employee at least that amount of the total bill that was used for business purposes.
Reasonable Requirements for Where Work Is Performed
While employers generally cannot dictate what employees do in their off-duty hours, they can make reasonable requests in response to the COVID-19 health crisis including prohibiting employees from working at locations other than their own homes (such as public coffee shops or locales where the employee may have a higher risk of exposure to the virus, or in places where internet is not adequately secure). Employers can also restrict employees from coming into the workplace and can recommend that certain employees self-quarantine in their homes if they are sick or have recently traveled to a high-risk area. Employers must be very careful, however, that all “work from home” policies are non-discriminatory in both how they are drafted and how they are applied.
If an employer in its physical office setting provides certain accommodations to employees—such as a standing desk for an employee with a back injury, or an ergonomic keyboard for an employee with carpal tunnel syndrome, or assistive technology for a visually impaired employee—the employer has an obligation to ensure that such accommodations are also made for and provided to employees who are being required to work from home.
Safety and Insurance Issues
OSHA and Cal-OSHA laws mandate that employers provide a workplace free from potential health hazards – even when the employee is working from home. A “Work From Home” policy should include a requirement that employees ensure that their work areas are free from any hazards that could cause them harm. Employers should also review their workers’ compensation and general liability insurance policies, and confirm with their carriers that all required coverages will apply with employees working from home rather than at the employer’s office.
Meal/Rest Periods and Overtime Issues
While in a physical office, it is easier to keep track of employee hours and to make sure that non-exempt employees are being offered and taking their required meal and rest periods. When your entire workforce is remote, however, it can become far more difficult to ensure that your non-exempt employees are taking all required breaks. It is critical that employers whose workforces are now being required to work from home implement a process to verify that non-exempt employees (a) are taking meal breaks and rest periods as required by California law, and (b) are not working overtime without being compensated for it.
When an employer’s entire workforce is working from home, keeping track of time can become far more difficult. Non-exempt employees must be paid for every minute worked—no matter the time of day—so it is imperative that they accurately record all time worked, and precisely when that work was performed. It is important that employers create a written timekeeping policy (a) governing work from home, (b) detailing what is and is not actual working time, (c) determining when work hours will be (if flexible, reporting time pay may be triggered, so employers must tread carefully), and (d) requiring accuracy in reporting the exact times work was performed (to ensure that the rules involving split shift pay are followed precisely). If hardware or software that normally is used to track employees’ time at the workplace is not available to an employee working from home, employers can implement any method that allows self-reporting – provided that this is clearly communicated to all employees and that time is entered into the employer’s timekeeping system regularly.
Security and Confidentiality
With the sudden increase of remote workers caused by “shelter in place” orders, many businesses now have employees working from home and using their own computers, tablets, cell phones, WiFi networks, and routers. Businesses have a legal obligation to protect the confidentiality of their customers and their data. Therefore, it is critical that employers have a strong remote work security policy that addresses issues such as: (a) specifying which tools and platforms employees can and cannot use; (b) requiring the employee to connect to the internet via a virtual private network (VPN); (c) requiring the use of multi-factor authentication, password management, firewalls, and a strong EDN (endpoint detection and response) solution; and (d) requiring employees to promptly report to the employer any actual or suspected hardware loss, data breach, or network intrusion. Further, all employees should be instructed to disable or turn off Alexa or other “smart speakers” or smart security devices (such as Siri) when engaging in confidential communications at home. Otherwise, there is risk of breach of important confidential business information. Here are two excellent articles on how to manage remote working and on the important security issues raised by Alexa, Google Home, Siri and other similar “smart home” devices.
Employment law is complicated enough under normal circumstances – let alone under the extraordinary, rapidly-changing, and very complicated circumstances facing California businesses due to the COVID-19 pandemic. Workplace Legal is here to help you successfully navigate these challenges. Please do not hesitate to reach out with any questions.