Jeffrey H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360, in “Telework Takes Center Stage Amid Coronavirus Pandemic,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

Offices around the country are turning into ghost towns as American businesses turn en masse to telework as a way to ensure the novel coronavirus doesn’t decimate their ranks.

The World Health Organization on Friday confirmed more than 132,000 cases worldwide of COVID-19, the disease caused by the coronavirus, and has declared it a pandemic. In the U.S., state and local authorities in many locations have acted to limit large public gatherings, and many businesses have shuttered their doors entirely.

As public health experts have increasingly called for social distancing to be imposed in response to the coronavirus pandemic, some businesses whose workers don’t have to be physically present to do their jobs have encouraged or required that employees work remotely, even companies that haven’t traditionally embraced telework. …

Here are five things employers need to know about letting employees work from home.

Set a Clear Policy

While not every employer may be cut out for a telework program — hotels and restaurants, for example, that rely on face-to-face interactions that can’t be done remotely — many white collar businesses can take advantage of the fact that workers’ jobs can be done off-site while a pandemic is going on.

But whether a company already has a telework program in place or is getting on board due to the practical realities brought on by the coronavirus, lawyers say it’s vital that businesses spell out the details of their programs upfront. …

Jeffrey Ruzal, a member at Epstein Becker Green, said there need to be parameters so that managers, supervisors and workers all “understand what the rules are.”

Otherwise, he said “people are going to do what they think is best, and that might fall outside the operational constraints of the business,” such as operating in a relaxed atmosphere, working past their shift or through lunch, and accruing overtime that an employer hasn’t budgeted for. …

Track Hours Accurately

Just because employees are working from home doesn’t mean they don’t get paid as they otherwise would if they were physically in the office. Since they are on the clock, workers must be paid their regular hourly salary, or weekly salary in the case of exempt workers, as well as any applicable overtime.

But tracking hours of nonexempt workers can be tricky when they aren’t physically present, attorneys say, particularly when it comes to tracking overtime or whether workers are taking any mandated meal breaks and rest periods. …

To mitigate any potential legal risk from improperly paying employees, Ruzal said that telework puts the onus on employers to “stress” in their policies the need for hourly workers to self-report time.

“From a management perspective, it will always be safer for an employer ... to have the nonexempt employee self-report the time because that way you are putting the responsibility on the employee to let the employer know how many hours [the] employee worked,” Ruzal said. …

Specific Rules Apply to Salaried Workers

Nonexempt hourly workers generally only must be paid for time worked. But with salaried, exempt employees, the Fair Labor Standards Act requires that they be paid a set salary irrespective of the number of hours they work unless the business is closed for at least a full workweek and the person performs no work at all.

One issue particular to exempt employees that can come up amid the coronavirus outbreak, according to Ruzal, is that if a business shuts down part of the way through a workweek, exempt workers must be paid as if they worked the full week if they worked any hours at all before shop was closed up.

“If, for example, a workplace closes midweek and an exempt employee works one day or even half of a day and the exempt employee is sent home because of the operational needs of the employer, in that instance the exempt employee still has to be paid for that workweek,” Ruzal said. “That’s one question that we’ve been receiving from clients that I think in the past certain employers have made mistakes on.”

Ruzal also noted that while there are regulations that exist to allow exempt employees to perform nonexempt work in emergency situations without putting their exempt status at risk, employers are playing with fire if they allow exempt workers to fill in for hourly workers for long.

“It loses the emergency definition once it becomes something that the employer can plan for,” Ruzal said. “Such as here with COVID-19, since it’s sort of been somewhat of a slow boil ... even though it is unfortunately gaining momentum in the last week or so, it is something that employers can start planning around. So I think there’s a risk of relying on the emergency carve-out because I don’t think it will necessarily apply.”

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