Experts address regulatory implications of the transition to remote work.
The COVID-19 pandemic led millions of Americans to work from home for the first time. Some Americans had already worked remotely, but the pandemic accelerated an expansive transition to remote work.
And this transition is here to stay, experts predict. In a recent survey of 100 executives around the world, nine out of 10 executives plan to include remote work as an option after the pandemic. Although only about 10 percent of jobs have the capacity to transition to remote work, the impact of the shift is significant.
From a regulatory standpoint, this hasty shift has meant that many workers have transitioned without consistent workplace rules or technological infrastructure. Employers may be subject to different tax laws and labor regulations if they have employees working from across state lines. In addition, new privacy concerns have emerged as supervisors attempt to oversee employees in the remote environment.
Moreover, workplace equity has been affected. Some experts argue that women face disproportionate impacts from telework, which may lead to a greater burdens of housework and higher rates of mental health concerns. In addition, although people with disabilities have long asked for accommodations to work from home to address needs that make physical presence at the workplace difficult, such as limitations in mobility, some people with disabilities, such as members of the deaf-blind community, need new legal frameworks to ensure access to virtual spaces.
Currently, the Occupational Safety and Health Administration has not issued home office regulations for remote work. The Fair Labor Standards Act allows for remote work arrangements as long as there is accurate timekeeping and pay meets minimum wage law requirements. In response to the rise in remote work and concerns about proper pay, the U.S. Department of Labor recently clarified that the Act requires employers to pay for all hours of work they know or have reason to believe were performed.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title I of the Americans with Disabilities Act (ADA), which requires that employers with more than 15 employees provide “reasonable accommodations” to individuals with disabilities as long as it does not cause “undue hardship.” The EEOC recognizes remote work as a possible reasonable accommodation.
This week’s Saturday Seminar focuses on legal concerns surrounding the future of remote work.
- Employers who choose remote work for their employees need to be aware of various post-pandemic legal concerns, explains Isaac Mamaysky of Albany Law School in a forthcoming article in the UC Davis Business Law Journal. To avoid civil rights violations, employers should choose objective categories and review disparate impacts of their policies if some of their employees remain home while others return to the office, he argues. Mamaysky explains that employers of remote workers may face the possibility that their companies will be subject to the employment laws of multiple states if their employees work from home across state lines. Employers are best situated to avoid liability and promote worker productivity if they allow employees to choose where they work, Mamaysky suggests.
- In a recent paper, Tammy Katsabian of Harvard Law School considers the privacy implications of telework. Katsabian explains how home offices are hybrid spaces that empower employers to surveil teleworking employees and reallocate the costs of securing workspace to employees in ways that disadvantage workers based on gender and socioeconomic status. To regulate invasions of privacy, Katsabian suggests privacy-by-design requirements for tech companies, negotiation requirements for employer privacy policies, and a proportionality test to balance employers’ economic interests with employee privacy rights. To address gender and socioeconomic disparities, Katsabian recommends that employers provide everyone with necessary infrastructure to telework regardless of preexisting capabilities. Katsabian also argues that the government should promote technological education so more people have opportunities to enter employment that can shift to telework.
- In an article in the Washington University Journal of Law and Policy, Michelle A. Travis of the University of San Francisco School of Law suggests that the COVID-19 pandemic has challenged traditional judicial deference to employers when it comes to refusing workplace attendance accommodations under the ADA. In recognizing the flexibility of work during COVID-19, Travis recommends that courts pay attention to the EEOC’s conclusion that the ADA does not require physical attendance at a workplace as an essential component of work and that allows modified work schedules to count as reasonable accommodation. Travis calls for courts to deny remote-work accommodations only if employers demonstrate that a flexible employee work schedule would impose an “undue hardship.”
- How the ADA applies to virtual health care and employment remains an open question, explains Blake E. Reid of the University of Colorado Law School, Christian Vogler of Gallaudet University, and Zainab Alkebsi of the National Association of the Deaf in article in the University of Colorado Law Review. Reid, Vogler, and Alkebsi argue that Title III of the ADA, which addresses the need for public accommodations in brick-and-mortar offices, does not translate perfectly to medical videoconferencing in jurisdictions that do not recognize websites as places. To safeguard healthcare and employment for deaf or hard-of-hearing individuals, Reid, Vogler, and Alkebsi call for healthcare providers and employers, videoconferencing platform providers, and third-party translators to coordinate in an effort to ensure accessibility to healthcare and employment in virtual spaces.
- In a recent study, Thomas Lyttelton and Emma Zang of Yale University and Kelly Musick of Cornell University examine the effect of teleworking on gender inequalities. They find that the gender gap narrows in childcare because teleworking increases time spent on childcare for both fathers and mothers. On the other hand, they claim that teleworking increases the gender gap for housework because teleworking mothers do more housework than fathers and are more likely to be working with a child present, which can adversely affect productivity. Teleworking mothers reported greater anxiety, loneliness, and depressed feelings than teleworking fathers. Lyttelton, Zang, and Musick argue that policymakers should consider the disparate impact of teleworking on mothers.
- The transition to remote work during the COVID-19 pandemic accelerated the shift to more precarious employment by shifting workspace costs from the employer to the employee, Phil Lord of Carleton University argues in an article published in the Denver Law Review. To address this issue, Lord suggests that governments implement universal pension plans funded by corporate taxes to help workers achieve more stable futures. Lord argues that governments should address the inherently unequal impacts of working from home on already disadvantaged employees. Workers with children, shared spaces, and limited technology may have a harder time working from home than wealthier peers without childcare roles who have private spaces and adequate technology. Lord recommends implementing a variable tax credit for those who bear a greater burden working from home to offset disparate impacts of remote work.
The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.