Remote Work in the Pandemic Age: Employer Obligations and Best Practices
As a result of the COVID-19 pandemic in Michigan, state agencies responsible for protecting public health and worker safety have imposed a general legal obligation on most employers to require that employees who can feasibly work remotely do so. This article will review that general obligation and discuss best practices for employers.
Emergency Rules and Orders
On October 14, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) issued an emergency rule which requires that employers “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” https://www.michigan.gov/documents/leo/Final_MIOSHA_Rules_705164_7.pdf
The Michigan Department of Health and Human Services (MDHHS) echoed that obligation in its own order, which became effective November 18, 2020. Specifically, the MDHHS Order generally prohibits workplace gatherings unless the gathering complies with the MIOSHA emergency order1. Please note that there are exceptions to these laws which the employment lawyers of Foster Swift can discuss with you.
Both MIOSHA and MDHHS issued additional guidance on how to interpret these rules and orders. MDDHS advises:
The responsibility to maintain a safe workplace is paramount, and strongly suggests that employers should allow their employees to work from home if possible. In order to minimize the presence of individuals gathered in work settings where COVID-19 may spread, employers should only permit in-person work when attendance is strictly required to perform job duties.
A “strict requirement” for in-person work means that a worker is unable to physically complete required job tasks from a remote setting (e.g., like a food service or auto assembly worker, or a job involving protected data that cannot be accessed remotely). It should not be construed as permitting in-person work solely because working remotely may result in decreased productivity or efficiency (i.e., because an employee may be more effective / efficient in person) or because there may be additional costs related to performing work remotely (i.e., costs for equipment like laptops, VPNs, software licenses).
MIOSHA further advises:
- MIOSHA will accept a written policy which indicates that employees are not to perform in-person work activities where the work activity can feasibly be completed remotely.
- Employers are obligated to demonstrate infeasibility of remote work.
- Employers should include in the remote work determination information which covers at least:
- Which positions/classifications report for in-person work and why they must be physically present in the workplace;
- Reasons that this work cannot be performed remotely; this must include enough specificity to show this analysis has been performed.
This written policy may be part of the employer’s COVID-19 preparedness and response plan. It does not have to be a stand-alone document.
In light of the above, the employment lawyers of Foster Swift advise that the most prudent course of action for employers to comply with their obligations under state law, and to avoid enforcement actions, is as follows.
- Adopt a written policy which generally prohibits in-person work for employees to the extent that their work activities can feasibly be completed remotely.
- Perform a separate written “remote work determination” analysis for each individual employee position or job classification.
- An individual remote work determination must avoid vague generalities about reduced efficiency or productivity. Rather the analysis must include a specific description of both why the person in the job position or classification must be physically present in the workplace to perform the work activity, and why the work activity cannot be performed remotely.
- Divide a worker’s job duties into those which can feasibly be performed remotely and those that cannot. Require that the worker remotely perform the former.
- Consider requiring that each remote worker sign a Remote Work Agreement, or an acknowledgment of a remote work policy, which address remote work issues such as use of employer property and recording of hours worked.
Employers may contact the employment lawyers of Foster Swift to assist with legal compliance, adopting best practices, and defending enforcement actions arising out of these laws.
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