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USA: Preparing for the return to work and the "next normal"

07 April 2021
Our employment experts in the USA answer key questions in relation to working from home and the future world of work..
In response to the pandemic, restrictions have been implemented internationally, often including the requirement to work from home where possible. As the vaccination programme is underway and restrictions are cautiously reviewed, we consider what the future world of work may look like and whether home working is here to stay.  
Do employees have a right to continue working from home after the lockdown restrictions have lifted?
In the USA, absent lockdown restrictions, employers have the ability to require employees to return to the office. However, many employers are doing so only cautiously and subject to close adherence to the guidelines set forth by the Centers for Disease Control and Prevention. While an employee may not have a unilateral right to refuse to return to work, there are numerous laws and regulations that remain in place for an employee to raise concerns about the safety of the conditions of returning to work. For instance, if an employee believes that the workplace safety and protocols are an issue, the Department of Labor and many state laws provide employees the ability to submit complaints regarding the safety of the premises and working conditions. Furthermore, even if an employer has safety protocols in place, we anticipate numerous employees will seek accommodations, in the form of remote working, based upon a disability or serious health concern diagnosed by a medical profession the Americans with Disabilities Act and associated state laws. The reasonableness of requests for accommodation is determined on a case by case basis and depends on a number of factors, such as the nature of the employee’s medical condition, the duties associated with the employee’s position and whether the accommodation (i.e., remote working) will create an undue burden for the employer. 
Should employers have a policy dealing with home working and what are the key points?
Yes. There are a number of concerns for employers when addressing home working and employers need to keep in mind obligations such as correctly tracking pay and overtime for hourly paid employees under federal and state wage and hour laws and regulations. Further, employers need to consider policies regarding the privacy and computing access. For instance, medical professionals that are working at home are often dealing with confidential and protected health information for patients that is protected under HIPAA, a federal law that protects patient privacy, and may be accessing this information through personal laptops or computers. Employers should consider the nature of the information their employees are handling and ensure that policies are in place to maintain the privacy of protected information and compliance with applicable laws. 
Can an employer require employees to work entirely or predominantly from home? Is employee consent required? What are the main risks?
As a general matter, under the “at-will” system of employment in the USA, both the employer and the employee are deemed to act at their own will in deciding whether to engage in an ongoing employment relationship. Thus, an employer may, at its own will, require employees to work entirely or predominately from home, just as an employer may set other terms and conditions of employment (i.e., rate of pay, vacations, bonuses, etc.). Similarly, an employee may decide at his or her own will to not agree to those conditions and thus, in essence, terminate the employment relationship. Thus, as a general matter, employee consent is not required for an employer to direct employees to work from home, but the employees are free to resign. Beyond obligations to track hours and ensure compliance with privacy laws, employers will also need to consider whether and how to pay for the additional expenses that may be required for employees working remotely. 
Do employees have any entitlement to allowances/benefits if required to work from home?
The employer has wide discretion on whether to provide certain allowances or benefits for employees working from home, but should be mindful of federal and state wage and hour laws that may require employers to pay for certain expenses incurred during the course of employment if not otherwise agreed to by the employee. Another issue, however, is the tax consequences of employees that work from home, as many employees that are now working primarily from home may claim a deduction on their tax filings for a portion of their residences used for business purposes. Employers and employees should seek the advice of tax professionals to fully assess the potential implications of shifting workforces to remote work. 
What are the key trends in relation to home working?
Presently, many employers are “re-opening” professional offices to employees on a voluntary basis, allowing employees to continue to work remotely for the time being. Other employers are allowing only a portion of remote works to return to the office and are strictly monitoring capacities and enforcing guidelines for employees that choose to work in the office as opposed to home. As vaccine roll out continues and for at least the next three to four months, we anticipate many employers that are able to allow their work forces to work remotely, will continue to do so in light of the ongoing safety concerns and potential liabilities associated with workplace exposures. 

Author: Bobby Hellner  

Get an insight into the current situation in other jurisdictions from our global legal team.

 

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