Legal considerations for managing the COVID-19 remote workforce


In the blink of eye last year, companies across the United States and around the world were forced to shift employees to remote work at a fast and furious pace. For some, the pandemic marked the first time they ever had to manage a workforce remotely.  For others, remote work was not new, but the pandemic certainly brought its own set of challenges.

Over a year later, while some companies are bringing employees back to the office, other companies are re-thinking their return-to-work plans and are bracing for what is to come as the Delta variant surges.  No matter where you are at in your re-opening process, now is the time to review your remote work policies and procedures, or put them in place, to ensure you are prepared for the ever-changing landscape of COVID-19.


If your company did not put a policy in place last year, this is the first step to take.  If your company has a policy in place, review it to ensure it still serves the needs of the company. While not all inclusive, below are some key considerations for drafting, reviewing and implementing a remote work policy:  

Consider how strict your policy will be. Are employees encouraged to work at home? Are you offering a hybrid model?  Are employees barred from coming to the office?  If your remote work policy is temporary, make that clear.

Convey to your employees that you expect them to help the company maintain normal business operations.

Make sure employees are aware that even though they are working remotely, they must abide by all workplace policies and procedures, including working their scheduled hours.

Ensure job responsibilities and expectations are clearly defined. Maintaining rules is essential to managing remote workers for pay, leave, and, as necessary, corrective discipline purposes.

Are you providing phone, computer, internet and other technology or equipment to remote workers? If not, know your jurisdiction, as many jurisdictions require reimbursement for business expenses. Under the FLSA, employers cannot require employees to pay for business expenses if doing so reduces compensation for nonexempt employees below the required minimum wage or infringes upon required overtime pay.

Address cybersecurity and device use requirements.

Have employees sign and acknowledge receipt and understanding of the policy. Keep a copy of the acknowledgement in the employee’s file.

Your policy should recognize that one size may not fit all.  As a wealth of studies and your own company’s experiences have demonstrated over the past 18 months, certain jobs are appropriate for remote work, while others are more suitable for an in-person collaborative workplace environment.   

Remote work decisions should also be guided by the latest available guidance from the CDC, state and local health agencies, as well as your own safety professionals.

Unless your entire workforce is remote, make sure you are continuing to offer remote work options fairly to your employees. While there are certain jobs that cannot feasibly be done from home, the problem arises when companies provide some employees with the ability to work remotely but others, who could also do so based upon their job duties, are being denied permission. 

For employees who have previously requested accommodations, make sure those are being maintained (to the extent possible) in the remote-work environment.  Check in with employees and supervisors to ensure any accommodations are still effective. For new accommodation requests, adhere to company policies and procedures but also remain flexible if, for example, an employee is struggling to get an appointment with a doctor to complete any required medical documentation.


Review classifications to ensure employees are properly classified. An incorrect classification can be extremely costly. Have a policy that requires each nonexempt employee to:

  • Accurately report all hours worked
  • Not work more than 40 hours in a work week (or in excess of the daily maximum in those states that require overtime pay in excess of eight hours in a day) without written authorization from a manager.
  • Clock in and out via a provided timekeeping application, e-mail or other method chosen by your company. Your policy should also clearly state that employees are subject to termination of employment for failure to truthfully report all hours worked. 


Continue to work with internal and external IT vendors to make sure the equipment employees are using is “safe.” Update and review policies regarding the use of VPN and other remote/cloud-based networks and policies regarding what client/customer information may be brought home or accessed from home, particularly if the information is sensitive. Policies should cover both company-owned and employee-owned computers, laptops and mobile devices. 


OSHA and workers’ Compensation issues can apply to remote workers.  If an employee is injured while working at home, the key issue will be whether the employee was injured while performing work for the company. Having robust policies for reporting hours worked is necessary to avoid such potential disputes.


The last 18 months have been challenging. Employee stress and burnout are real risks for many employers. Ultimately, however well crafted, your remote work policy cannot, alone, ensure productive and successful employees.  Offer individual check-ins with your employees and provide support and guidance as needed.  Leaders should continue to be flexible when appropriate, while also ensuring consistency in remote work alternatives, and handling employee discipline and performance concerns.

Lauren Tompkins and Richard Millisor are attorneys at the national labor and employment law firm Fisher Phillips where they represent employers in state and federal courts in complex workplace litigation. They collaborate with business owners, in-house counsel, HR departments and employers to design and implement workplace policies that comply with local, state and federal regulations and standards.

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