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Creating Company Policies for Telework

By Trent Cotney

When news came of a new virus known as the coronavirus disease (COVID-19), most workplaces elected to move to remote work. What many businesses thought would be a few weeks out of the office turned into a few months and then a few more. Although some of these businesses have now returned, many realize they can function and thrive from home. Companies like Twitter announced the option for employees to work from home forever. Others have staggered their in-office shifts and now offer remote work part-time.

Trent Cotney, PA
Trent Cotney, PA

If a construction company has employees that can perform their essential functions from home, depending on the spread of COVID-19 in your community, this may be the best option until we get control of the respiratory disease. Public health organizations support this notion as it can help mitigate the spread of the virus. And for employers, telework may help you continue to enhance the technical aspects of your operations. It may result in a happier workforce with less overhead costs too.
In this article, we will discuss the necessary steps construction employers can take to provide their workforce with the option to work from home. From effective time-tracking programs to protecting company assets and instituting company policies that manage remote operations, there’s a lot of administrative tasks associated with this decision; however, it may be the best option for your business in case COVID-19 begins to spike in your community. Remember, this article is solely for educational purposes.

Choosing a System that Works for Your Business

As we mentioned above, every company will explore their telework options in a way that makes sense to them. Some will shelf the idea of returning until 2021. Others will stagger scheduling, having some employees in the office on certain days. Some companies are doing this because they’re in a high-risk community — others to reduce their staff’s anxiety. There is no one-size-fits-all approach to creating company policies for telework. If a company elects to have telework as an option and reopen the office, there are a few crucial elements to consider:

  • If employers do elect to have their employees return to an office setting, they should closely monitor the local, state, and national guidelines related to reopening their office.
  • They should also closely follow the latest instructions of public health organizations like the CDC and OSHA.
  • They should also review a reopening-the-office checklist and reach out to a contractor lawyer with any questions. A construction lawyer will review the company handbook and craft policies for both telework and reopening the office that protect their business.

Teleworking is not a benefit, but it can be considered a special accommodation. Employers are not required to provide telework for their employees and employees are not required to telework if they prefer not to. If a company allows employees to telework and they feel that the policy is being breached, they can rescind the arrangement if necessary. The key elements to developing a telework policy are clarity and consistency. If an employee feels that a similarly situated employee is receiving preferential treatment, including the option to telework, this can create liability issues for an employer, including a discrimination claim.

Wage and Hour Laws

When you move over to telework, the employees should be paid the same salary and their work status and responsibilities should remain the same. The employee should also work the same number of hours and enjoy the same benefits they had before leaving the office. Overtime pay is one common pitfall an employer can come across without firm policies in place. Some nonexempt employees may feel motivated to work longer hours with greater flexibility of the time of day that they work. For this reason, it’s best to develop a policy that requires workers to work their standard hours and restricts them from going well beyond the 40 hour workweek.

Time Tracking

Employers should also implement time tracking software to help account for every hour that every employee (full-time, hourly, etc.) works each week. If nonexempt employees exceed 40 hours, they should be compensated for that time; however, their supervisor or the human resources department can remind employees of the policy in place. Time tracking software will not only offer a clear solution to how many hours of work each employee is performing on a weekly basis, but it can also help the company assess in what areas they are efficient and where they can improve.

Company Resources

Some employees may require equipment or software to perform their duties remotely. Construction companies should accommodate reasonable requests for their remote workers, including providing smartphones or secure laptops to employees. However, employees utilizing loaner laptops and other software need to sign an agreement stipulating that the equipment will be utilized strictly by authorized personnel for company-related tasks. Employers will need to reach out to their IT team to ensure that their company assets are not susceptible to a data breach. They should also remind their workforce of their confidentiality agreement. If an employee elects to use their own equipment, the employee is solely responsible for these items.

Eligibility Requirements

Generally, an employee is qualified to telework if they can perform the essential functions of their position remotely. In construction, there are clearly some positions that do not qualify for work from home. It’s important that similarly situated employees are provided with the same telework options. In addition to eligibility requirements, management-level employees will need to receive training on evaluating the performance and productivity of their team. If employees are violating company policy, they should receive a warning or disciplinary action no different than if they were in the office.

Employer’s Liability

Employers need to keep in mind that just because workers are out of the office doesn’t mean they are no longer responsible for their health and safety during working hours. Every employer should be covered with workers’ compensation. Furthermore, if an employee is injured in a job-related accident in their home, the company may be considered responsible. In fact, the Occupational Safety and Health Administration has policies related to telework, so employers must be aware that certain safety requirements still exist even when their worker is outside of their typical work environment.

As we enter a brave new world in 2020 due to the COVID-19 pandemic, employers will need to adapt their operations to combat a variety of challenges presented by the spread of the virus.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Trent Cotney is Florida Bar Certified in Construction Law, General Counsel and a member of the Florida Refrigeration & Air Conditioning Contractors Association (FRACCA) and a member of RACCA. For more information, contact the author at 813-579-3278 or go to www.hvaclawyer.com.

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