Chana Anderson, SHRM-SCP, SVP and HR Services Practice Lead was featured in SHRM’s News and Alerts article: Telework and the Pandemic: California Employment Laws Still Apply. Read the article below written by June Bell
The number of coronavirus cases has been rising daily in California, even as schools, shops and offices remain shuttered in an effort to slow the spread of the highly contagious virus. Employees at essential businesses such as grocery stores and pharmacies are permitted to report to their jobs, while hundreds of thousands of restaurant and hospitality employees are out of work.
Millions more Californians are telecommuting while sheltering in place. They’re attempting to focus on work at kitchen tables, on living room sofas or, if they’re lucky, in home offices. Even employers that hadn’t previously permitted remote-work arrangements have changed their tune during the pandemic.
Although the situation is a far cry from “business as usual,” California companies must nonetheless follow the state’s labor laws, including those governing meal and rest breaks for hourly workers and reimbursements for business expenses incurred by offsite workers. “All the employment laws still apply in a crisis situation,” said Jennifer Shaw, an attorney with Shaw Law Group in Sacramento.
Permission to Telecommute
When Gov. Gavin Newsom issued a stay-at-home order on March 19 for California’s nearly 40 million residents, many business leaders assumed they could simply instruct their employees to operate remotely. But if they had not previously permitted employees to work offsite and did not have a work-from-home policy, the reality has been more complex.
Federal and state laws require employers to provide reasonable accommodations—which could include the option to work remotely—for employees with medical conditions or disabilities. Employers that had previously balked at that accommodation but had a change of heart during this crisis have opened the door to allowing remote work after the shelter-in-place order is lifted, Shaw warned. “If you ever want to argue that telecommuting is not a reasonable accommodation, you’d better not allow it now,” she said. “Either you can telecommute or you can’t.”
Employers that want to permit their workers to telework should have counsel draft remote-work agreements that include requirements for employees to report any unsafe working conditions and to commit to making themselves available during a defined workday.
The agreement should also include a commitment by workers to protect the privacy of sensitive or confidential information: Employees should affirm that they will not leave sensitive documents in common areas and will isolate themselves if they must discuss sensitive information with colleagues on phone calls or in virtual meetings.
Businesses that wish to allow remote work only during the coronavirus crisis should make that restriction clear in their agreements, said Zach Hutton, an attorney with Paul Hastings in San Francisco.
Mandated Meal and Rest Breaks
Nonexempt employees working remotely must agree to accurately record their hours, including meal and rest breaks—and must take those mandated breaks. The state’s Division of Labor Standards Enforcement requires that hourly workers receive a paid 10-minute rest break for every four hours they work “or major fraction thereof.” They are also entitled to a 30-minute unpaid meal break for every five hours on the job.
Companies can ask their hourly remote workers to track their rest breaks, but it’s more important that they log their unpaid meal breaks, said Chana Anderson, SHRM-SCP, senior vice president and practice leader of HR services for ABD Insurance & Financial Services in San Mateo.
Employees who work through their 30-minute meal period must receive a missed-meal premium equal to an hour of pay. Managers or HR professionals who discover missed meal breaks should coach employees on time management strategies and remind them that the company expects them to fit the breaks into their schedule, Anderson said.
Reimbursement of Work-Related Expenses
Employees who don’t typically work from home may not have a home office. Employers can deliver laptops, printers and other goods from the workplace to employees’ homes or allow employees to purchase necessary equipment, Hutton said.
California’s Labor Code requires employers to pay for “all necessary expenditures” workers incur in performing their jobs. “It comes down to the necessities,” Anderson said. “What do employees need to do their jobs versus what preferences do they have? If you don’t need a $2,000 office chair, we won’t be buying it. You can offer a choice of, say, three approved models. But now is not the time to buy a standing desk for your home.”
Most people already pay for monthly data plans and Internet access for phones and home computers. But when they’re using that equipment for work, employers should provide a stipend—Shaw recommends $50—to defray those costs.
When the shelter-in-place order is lifted and workers can once again return to their office buildings, businesses must decide what, if any, equipment and supplies employees need to return. Goods that the employer paid for belong to the employer, Anderson said, adding, “The rules haven’t changed, regardless of where the worksite is.”