Legal Considerations For Remote Work Policies

Over the past several years, I've written several times about ongoing #COVID19 risks*, employers' responsibilities to protect employees' health, and how accomodating the health concerns of the immunocompromised, disabled and others are a vital #DEI consideration. I predicted that stringent Return to Office (#RTO) policies would end up in courtrooms to determine if working in an office is truly a vital job requirement and whether employers are accomodating the diversity of health risks people face. Fortune's article notes, "After seemingly having won the return-to-office wars, employers may be walking into a legal storm by enforcing rigid return-to-office (RTO) mandates... Rigid RTO policies are disproportionately impacting disabled employees, mothers, and older workers–and could even, in certain cases, breach the law." The Americans with Disabilities Act is over 30 years old, but it pertains very much to our current age of ever-evolving COVID variants and repeated reinfections. The ADA’s reasonable accommodation obligation includes “modifying workplace policies” and “might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.” We know people with comorbidities face additional risks from COVID infections, thus some with disabilites are filing complaints to fight for accomodations from overly strict RTO policies. And it's not just people with disablities filing claims. "Companies are facing a rise in mental health disability discrimination complaints from employees who view remote work as a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) has observed a 16% increase in such charges between 2021 and 2022, particularly for conditions like anxiety, depression, and post-traumatic stress syndrome." Then there's older workers, who say they are more likely to retire due to forced to RTO (and less likely to do so when offered remote options.) "If RTO policies disproportionately affect older employees, either by forcing them into early retirement or by making their work conditions less favorable compared to their younger counterparts, employers could face age discrimination claims." The pandemic demonstrated companies can operate with workers remote and that employees can be productive and engaged in remote or hybrid work arrangements. Overly stringent RTO demands fly in the face of those lessons learned, and that is causing a rise in claims and lawsuits. Smart employers will consider what sort of flexibility it can offer to all employees, accomodate individual employee's unique health needs, and strive to make offices and workplace as safe as possible from the continued surges of COVID infections. *See the first comment for a note on ongoing COVID risks. https://lnkd.in/gyxYmuRA

“If you don’t relocate and return to in-person work, we’re going to have to let you go.” Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back. According to a recent report, employees are considering suing their employers for “geographical discrimination.” Workers who moved to another city, state, or even country from their employer’s main office during the pandemic are claiming that they’re being discriminated against “geographically” by being forced to return to in-person work. Geographical discrimination is not a thing, at least not legally. It is 100 percent legal to end remote work, require in-person work inside your place of business, and terminate anyone who refuses to comply despite where you permitted them to move and work during the pandemic. Employees are at-will, which means an employer is free to fire (and an employee is free to quit) for any reason, good, bad, or indifferent, as long as that reason isn’t otherwise illegal. “Geography” — the location of an employee’s work — is not a protected class under the law. Thus, a return-to-work mandate ending remote work is perfectly legal, even if it requires some employees to relocate back to the location of your business to keep their jobs. There is one exception to the legality of “geographical discrimination” — if an employee needs to continue working remotely as a reasonable accommodation. The remote-work experience created during the pandemic may impact the reasonableness of a remote-work reasonable accommodation request now that the pandemic has ended. According to the EEOC: “The temporary telework experience could be relevant to considering the renewed request [for remote work as a reasonable accommodation].… [T]he period of providing telework because of Covid-19 could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.” Otherwise, it’s legal to discriminate against employees based on where they live. It might be a lousy HR practice to end remote work for employees who have performed successfully and without issue while working remotely from distance, but lousy doesn’t necessarily mean illegal. #remotework #geographicaldiscrimination #reasonableaccommodation

What exactly about remote work triggers a company's tax compliance obligations? Bloomberg released its 2024 Survey of State Tax Departments, focusing heavily on remote work arrangements and whether employees working remotely from a state create tax obligations for their employer. Unsurprisingly, most states said yes. The answer, also unsurprisingly, were highly varied on exactly what type of remote work activity was enough to do the trick. 23 states responded to the survey. Nearly 20 states said any remote work triggered nexus. Those same states confirmed that if the remote employee performed some back-office administrative functions or remotely hired, supervised, or trained employees, such activities clearly created nexus. Roughly 22 states indicated that remote employees working on product development created nexus. Roughly 12 states indicated that an employer who reimbursed for some cost of an in-home office created nexus. 5 states consistently took the state tax lawyer's favorite answer, "It depends." I am not at all surprised by these results. More and more since the pandemic, I have watched state auditors ask about remote work arrangements. "How do they find me?" companies ask. Your remote employees are filing personal income tax returns and reporting their W2s. It's not a mystery. If you adopted a remote or hybrid work policy in the wake of the pandemic and have not yet run an internal audit to track exactly where your employees are in fact working from, now's the time. The Bloomberg Survey suggests to me that state's are primed and ready to audit remote employees in an effort to capture more income tax from out-of-state companies than ever before. #pinchofszalt #womenintax #incometax #workfromhome #remoteworking