Employment Law Issues Surrounding Remote Work

By: Gregg Zeff
On: April 28, 2022

Woman Working from Home

What Aspects of Employment Law Change When an Employee Works Remotely?

For many, remote work has been a positive change that allows for more flexibility with families, reduces the costs associated with commuting, and relieves stress of working in an office environment. At the same time, however, the great shift toward remote work since the onset of the coronavirus pandemic has brought about a number of changes and adjustments to employment law that many employers are still getting used to. In short, most of the same basic principles of employment law apply; employers are still required to treat their employees fairly and offer the minimum state required benefits. However, some of these laws can be interpreted differently when it comes to remote workers. In this article, we’ll cover some of the different ways remote work affects employment law.

What Employment Laws Apply When the Worker and the Employer are Located in Different States?

One of the biggest changes we saw when many industries shifted to remote work was an increase in employers and employees working in different states. This was especially true of areas where many employees lived in one state and commuted to a neighboring state for work, such as New Jersey residents commuting to Philadelphia or New York City for their jobs. As a general rule of thumb, when an employer is based in one state, and an employee works in another, the applicable law is the law of the state where the employee is working. An employment law attorney can help employees make sure they follow out-of-state employment requirements and ensure that both employee and employer are compliant.

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How does FMLA Apply to Remote Work?

The Family Medical Leave Act, or FMLA, generally grants employees up to twelve weeks of unpaid job-protected leave to attend to family medical emergencies. FMLA only applies to “covered employees,” and part of that definition includes a requirement that the employee “works at a location where the employer has at least 50 employees within 75 miles.” Consequently, many questions have arisen regarding whether FMLA applies to remote workers that might fall outside of that specific portion of the definition where they would otherwise qualify for such benefits. For the most part, employment law attorneys seem to agree that as long as an employer employs 50 or more employees within 75 miles, a remote employee has access to FMLA benefits. It is also important to note that some states require employers to offer paid leave beyond what FMLA requires, so if you do have out-of-state employees, working with an employment law attorney can make sure that those employees are adequately protected.

How do Fair Labor Standards Act (FLSA) Laws Apply to Remote Work?

The Fair Labor Standards Act, or FLSA, generally governs working conditions for employees, such as setting the minimum wage rate, overtime pay, establishing appropriate record keeping, and setting child-labor standards. According to the US Department of Labor, employers must pay employees who work 100% remotely. An employer’s obligation to pay employees under the Fair Labor Standards Act is based on “actual knowledge” of the work performed, not where it is performed. In short, FLSA standards are unaffected by remote work; Employers are still required to pay their employees a fair wage, keep appropriate records, and pay fairly for overtime work.

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Are There Discrimination Issues With Requiring Employees to Return to the Office?

Return to work mandates have become a topic of discussion recently. Many employees are hesitant about returning to work, either because they are worried their own health issues give them a high-risk for Covid-19, or because childcare is so difficult to come by. In some cases, employers have been responding to that hesitation by terminating the employee’s employment, but such an action creates a risk of discrimination against these people because of their pre-existing medical conditions, or in the case of childcare, which disproportionately affects women, opens up the possibility of discrimination on the basis of sex. If you’re an employer looking to re-open their office, speaking with an employment law attorney is a good idea if you seek to avoid these discrimination issues, and to determine if there are ways to accommodate employees who need a little extra help transitioning back into the workplace.

What will happen with Reasonable ADA Accommodation Requests to Work From Home?

The Americans with Disabilities Act requires an employer to make reasonable accommodations for employees who have medical needs. In short, the law prevents employers from terminating employees with health concerns if the employee is able to perform the duties of their job with the assistance of reasonable accommodations. For some employees, the accommodation they need is working remotely. If certain employees are able to demonstrate that they can adequately perform their job duties while working from home, future employment law may find that remote work is a reasonable accommodation under the ADA.

Contact Zeff Law Firm for a Free Consultation If You and Your Employer Cannot Agree on the Parameters of Remote Work

Employment law is constantly changing and adapting. The pandemic was a perfect example of how employment changed dramatically in a short period of time. The experienced employment law attorneys at Zeff Law Firm are always available to help employees navigate through issues and to ensure that employers are complying with the complex and ever-changing landscape. Whether you are transitioning to fully remote work or are wondering what your options are for reopening or returning to the office, the employment law attorneys at Zeff Law Firm are here for a consultation.

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