Since the start of the COVID pandemic employers have changed the definition of work to include working away from the office and usually (not always) in an employee’s home. To accommodate a productive and legal work from home policy, HR Morning, an HR consulting firm, identifies five pitfalls to avoid when creating your policy.

1. Make sure you control against Fair Labor Standards Act (FLSA) violations. Understand the difference between what is allowed for salaried and exempt workers and their hours worked and the rules for hourly and salaried non-exempt workers. When your employees are working remotely and are classified hourly or salaried non-exempt they must be paid for time worked and at time and one-half for hours worked over 40 in a week. Make sure accurate records of hours worked are kept and if they work over 40 hours (even if you state that they may not) they must be paid overtime. HR Morning suggests controlling hours worked by checking in with the employee at the start of each remote workday to find out what they are working on and with whom and what hours they may be working. They also suggest setting hours when the employee should NOT be checking e-mails, logging onto their computers, or doing any other work activity that is “work”.
2. Be aware of discrimination and/or disability-related issues. Make sure you are not excluding (unintentionally or not) women, minorities, or disabled workers that are working from home from training, promotions (or the activity that leads to career opportunities), and other work events that are important to a worker getting ahead just because they are remote (out of sight).
3. Is the remote workplace suitable to you the employer and safe? An employer’s obligation to ensure a safe working environment extends to wherever the employee is working. Employers should make sure any home-work environment is conducive to productivity but also does not pose a risk. In addition, make sure you really know where work is being performed. Remote work does not necessarily translate to an employee's home. To them it could mean someplace far away, out of state, and even out of country.
4. Is your data and equipment secure? Remind employees of IT security protocols, equipment responsibilities, and that they should not work where they may be open to data security dangers such as public areas. Also remind them of what your policy is on downloading confidential documents.
5. What should employees do when they are working remote and the company is actually closed due to weather or power outages? If they are working and are classified as hourly or salaried non-exempt, they must be paid for that work time. Clarify to the employee what they are expected to do if the workplace is closed for any reason.

In addition to the above, HR Morning recommends that a remote work policy should address:

• Who is eligible for remote work?
• When an employee should be available or not during the workday.
• What responsiveness the remote worker is expected to adhere to.
• If possible, specify how productivity is measured.
• What equipment will the remote worker be provided by the business (and be responsible for returning and what equipment and supplies the worker will have to provide for themselves}? Tie this component of the policy to your business expense reporting policy and procedure if the business offers to reimburse the employee for those expenses.
• Is company tech support offered to remote workers?
• Check on the physical work environment to ensure health, safety, and security are provided.

Additional resources are available, including a sample policy, are available on ASE’s Remote Work Resources page.

Source: HR Morning. Creating a Legally Sound Remote Work Policy. The 5 Biggest Pitfalls to Avoid.