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In Practice

The Legal Challenges of Having a Hybrid Workplace

Hundreds of companies are starting to adjust to the new reality of having a hybrid work force, with some employees at home and others in the office. 

But what are the legal implications of this for employers? Julie Werner is an employment lawyer at the U.S. firm of Lowenstein Sandler, who specializes in employment law and has been advising U.S. businesses about legal issues surrounding remote working.

WERNER: The first point to make is that U.S. employment laws apply to all U.S. employees, regardless of where they work. Whether the employee works in a physical company location or from home, the employer still has legal responsibilities to the employee. 

BRINK: And what about if an employee’s home is overseas?

WERNER: Then there is some added complexity, because the employer has to comply with the laws of where the person is actually physically working. The company will have legal obligations potentially to register to do business and other things associated with having employees based in other countries.

Workers’ Comp At Home

BRINK: What about workers’ compensation law — does that also apply to the home if, for example, someone has an accident at home?

WERNER: In general, an employer has a legal responsibility to provide a safe workplace, but in practice, employers are obviously not going to go into employees’ homes and check the work conditions. Employers, at least in the U.S., are required to carry workers’ compensation insurance. That’s something that’s required. 

It would then be up to the workers’ compensation carrier to determine whether or not the person is eligible for coverage if they have an accident at home. Employees can sometimes overreach, but I personally have not seen anybody say something like, “I tripped over my bed and now the employer’s responsible!” 

But other workplace requirements do come up, such as someone needing a special keyboard. Or they may have a disability that requires accommodation, such as carpal tunnel, which needs certain modifications to their workplace. In this case, an employer would still legally have the same obligations to reasonably accommodate the employee.

BRINK: In these kinds of instances, is the entire home deemed a working environment?

WERNER: No, working from home doesn’t make your entire home into an extended office environment. Obviously, a lot of people live in very small apartments, and so they may not have a separate room or may have to work on the kitchen table. Even so, an employee still has a responsibility to treat company information as confidential, for example, and not to spread sensitive company confidential documents all over the house. Cyber security is an increasing problem in general and can be amplified when you have employees working remotely.

If you’re now open to having employees from all over the country, you have a greater talent pool, but obviously there may be potential corporate cultural issues with this structure. 

BRINK: Have you been surprised by how smoothly this massive transition to working at home has gone, from a legal point of view?

WERNER: We have had clients where employees are refusing to come back, or where they’re having difficulty recruiting if employees can’t work remotely. But I also think it’s opening up companies to a lot more talent than perhaps they realized. Where in the past, if the employee had to be physically in a location, for example, like Silicon Valley, you’d only be able to hire people based in California where there is a very high cost of living.

If you’re now open to having employees from all over the country, you have a greater talent pool, but obviously there may be potential corporate cultural issues associated with having employees who are all spread out and may not even have ever met each other. 

What Happens If an Employee Moves?

One problem that our clients have encountered is the situation where employees have relocated and didn’t tell the company. So the employer may not have taken out payroll taxes or complied with other state requirements. 

For example, they had employees who they thought were living and working in New York and then came to learn that they had moved to other places around the country, and so there’s some cleanup associated with payroll tax and other compliance obligations. 

There’s a case that’s pending between the states of New Hampshire and Massachusetts, where employees who previously paid taxes to Massachusetts because they worked in Boston are now working from their homes in New Hampshire. And Massachusetts is saying that they’re still entitled to payroll taxes. 

The case is actually on an expedited track to come before the U.S. Supreme Court. And that will play out across the country, in terms of what tax liabilities there will be depending on where employees are living and working.

What About Harassment in a Home-Working Environment?

Another issues is the notion of harassment and discrimination, even when employees aren’t physically present. When people are working from home in a more casual setting, they can let their guard down. They might be texting or on Slack, or communicating in other ways, but there’s still a need to make sure that people are complying with sexual harassment and other discrimination policies. 

The Issue of Mandatory Vaccines

Another fraught legal area is how companies are going to deal with a return to work and mandatory vaccines. 

Generally speaking, employers can mandate the vaccine subject to certain limited exceptions for people who have a demonstrated medical need or religious exceptions. So you may end up in a situation where if employees refuse to be vaccinated, the company may say, “Well, we’re not going to let you back physically in the office where we’ll allow others,” and then these people may end up having to work from home. 

Finally, there’s the problem of what happens if schools don’t resume a normal schedule in the fall. The law last year required employers to provide up to 12 weeks of partial pay for employees who needed time off because of COVID child-care-type issues. That is no longer mandatory, however, some employees may still say that they have limited child care. So to what degree are employers required to accommodate employees in that situation? It’s unclear.

Julie Levinson Werner

Partner at Lowenstein Sandler LLP

Julie Levinson Werner is a partner at Lowenstein Sandler LLP and a member of the firm’s Employment Counseling & Litigation practice group. She serves a dual role as both employment law counselor and litigator for clients in a wide variety of sectors.

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