Emerging Trends and Risks in Employment Discrimination, Harassment, and Wage and Hour Litigation

Dee Anna Hays, Shareholder, Ogletree Deakins, Tiffany Buckley-Norwood, Associate Counsel, Trinity Health, and Gary McLaughlin, Partner, Mitchell Silberberg & Knupp LLP, discuss best practices for employers with remote and hybrid workforces. They consider how time keeping, reimbursement, reasonable accommodation, drug testing, and other policies may differ for employees who are working from home. Dee Anna, Tiffany, and Gary spoke about this topic at AHLA’s 2023 Annual Meeting in San Francisco, CA. From AHLA’s Labor and Employment Practice Group.

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Transcript

Speaker 1: 0:00

<silence> This episode of A H L A speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.

Speaker 2: 0:21

Hi. Thanks for joining us. My name is Deanna Hayes. I'm a shareholder at Ogletree Deacons and a Vice Chair of Education for ALA's Labor and Employment Practice Group. I'm pleased to be joined by two fellow vice chairs from our practice group. First, Tiffany Buckley Norwood, associate Council Employment at Trinity Health. Also with us is Gary McLaughlin, a partner at Mitchell Silverberg and nep . We presented on the topic of remote work at ALA's annual meeting and are hosting this podcast to further explore some best practices for employers with remote and hybrid workforces, including how timekeeping reimbursement, reasonable accommodation, drug testing, and other policies may differ for employees who are working from home. So let's dive in. So first, I've seen in my practice that remote work is certainly something that's here to stay post pandemic. And clients really have a range of different types of workforces Currently, some have completely remote workforces, some have hybrids, and some don't have remote work at all. But it's a trend that we're definitely starting to see in the healthcare industry for more positions to be performed in a remote way. And Tiffany, would you share your thoughts on some new positions that you're seeing in the industry that are remote positions?

Speaker 3: 1:48

Yeah, sure. Um, so I will say, I'll give this this little brief disclaimer first because I work for Trinity Health that, you know, my opinions aren't necessarily the official positions of Trinity Health, but they're my opinions. Um, and, but with that being said, based on my experience, both at Trinity Health and, and before I joined Trinity Health at outside counsel , as you know, as an outside attorney, you know, the pandemic gave us this great opportunity to really see what's possible and allow us to get creative in a lot of ways , um, when it comes to how individuals are able to work, both from allowing us to fill in gaps where we might have staffing shortages or allowing individuals to who need , um, a workplace accommodation perhaps because of a disability where they need to be able to work remotely , um, in order to do that. And we learned of new and different ways to allow that to happen. So, for example, you know, you may not have thought of a bedside nurse position as being a remote worker position, right? Because they're typically by the bedside. Well, now in some situations, perhaps there is still that bedside nurse that's in person , but then there's another bedside nurse that's remote and they're working as a team together. So when one can't be there, the other one is there. That remote nurse is able to be there to be present to talk with the one that's actually in person , or maybe it's I an IT person , um, who travels , uh, from state to state, implementing and rolling out different types of , uh, software. Um, most of the time they're working remote unless they have to go to a different location in order to implement software. Or maybe it's someone who helps to fix a specialized type of equipment. You know, in years past we might've used an external vendor. Now we can maintain an in-house person who travels from state to state to fix that specialized equipment. So the possibilities are really open in a lot of ways when it comes to remote work. Now,

Speaker 2: 4:02

Thanks for sharing that. I think it's really eye-opening to see just the multitude of different types of positions that are remote in some capacity these days. And , and Gary, I understand that you focus a good part of your practice on wage and hour issues. What are some best practices for remote work when it comes to timekeeping?

Speaker 4: 4:25

Thank you. Yeah, I think, well, first of all, I think what, what Tiffany shared is really interesting 'cause it really shows the diversity of, of, of issues that can arise. A lot of different types of position, which gives rise to lots of different challenges from a timekeeping standpoint and otherwise. So, you know, these really are kind of diverse and complex issues. Um, I think the first thing to keep in mind is that remote workers are, you know, real, real workers. They all the same rules in terms of timekeeping and, and wage and hour. Um, rules are gonna apply generally to them as well. So for example, I think with a remote worker, there might be, in some circumstances, a, a tendency , uh, to maybe think of , you know, that think that timekeeping strict timekeeping isn't as important. They're working from home. If it's a position that has flexible schedule and flexible hours, you know, they kind of, they might be , um, there might be an inclination to think, well, they can kind of work and take breaks when they want, and we don't really need to to worry about all of that or keep track of all of that. And I think it's important to remember that accurate timekeeping is just as important for , uh, remote workers as it is for in-person workers. So , um, as a starting point, you know , think about what, what the timekeeping system is gonna be. Um, how are they going to record their time? Is it gonna be , um, for example, a uh , timekeeping system where they log in and log off on a , on their , on their computer at home , um, and make sure that they are in fact recording their actual time. So if they're working from home and they take a break to do something else, you know, that should be recorded. I've had clients who have kind of with remote workers who have said, well, you know, they, we just sort of, kind of agreed that, you know, the job is about eight hours a day and as long as he or she gets their work done, we're just gonna say it's eight hours and not really worry about sort of the details and exactly when they're working or not. And I think that's a real pitfall. Um, it really is important to be, to remember to be recording actual time and not defaulting just to schedule schedules and scheduled time, you know, while they're scheduled from nine to five. So we're just gonna put down nine to five every day . Um, again, actual, actual time is very important. And then I think when you have an employee who's working from home , um, I mean, this is certainly true for, for even non-rem remote workers. Um, but I think especially for remote workers, there's gonna be , um, a greater tendency or, or more blurred lines between, you know, when is working time and when is it after hours. So for example, responding to emails or text messages after hours. I think when someone is a remote worker , um, those lines can get blurred even easier. And again, that is generally gonna be considered time works . So if someone's , um, uh, checking their emails or responding to texts even when they're not sitting in front of their, their desktop working in front of their computer working, it's important to remember that, you know, that's work time and for remote workers as well. Um, so again, you know, you might have employees who are kind of doing things from home at odd hours, but it's important to keep , um, accurate records of all of that. Um , breaks are gonna be another important thing. Again, I I , I talked about, you know, employees with more maybe , um, having a little more flexibility over their schedule when they're working remotely , um, in many instances, but it's still gonna be important to make sure they're getting their legally mandated breaks in states that require that. Um, so again, recording those breaks, keeping track of them and enforcing the policies with respect to , um, uh, remote workers, there might again be a tendency to think that, well, they'll, they'll just kind of take breaks when they'll get as many breaks as they need or, or as much, you know, sort of , uh, downtime as they need. But that may not , um, that kind of informal approach may not comply with , uh, state , uh, break laws. So that's gonna be an important thing to keep in mind. Mm-hmm. <affirmative> . Um , and you know, in terms of, you know, productivity can be a concern , um, when, when you have remote workers, again, may may depend on the specific position and job duties, but there's often a concern of like, well, if they're working from home, how do we know they're really working and how are we know they're being as productive as they are? Um, and , and, and there's maybe different approaches to that that employers have. I, I know one thing that I am aware that some employers implement is various technologies that are intended to track , uh, productivity. Um, so for example, programs on computers that can monitor their keystroke activity and , uh, whether they're actually actively working on their computer or not, and may some of those technologies might be effective. I think there's also pitfalls , um, around some of those as well. Um, and I don't know , uh, Tiffany and Deanna, I , you know, what are your thoughts on that? Have you had experience with some of these kind of technologies that might , um, that some employees might use to try to track productivity and, and kind of make, try to keep employees honest, so to speak, with respect to their time ? Yeah,

Speaker 3: 10:09

So just

Speaker 2: 10:10

Help that . I'm sorry to interrupt. I was gonna say, I , um, I hope Tiffany mentions the jiggler here because I got a good laugh. <laugh>

Speaker 3: 10:17

<laugh> . I actually was going to say, you know , um, in my experience, a lot of those productivity tools are, are not effective for everyday use. If there is a particular concern about an employee, then that might be the time to dig a little deeper to find out what that employee is doing during their time. You know , um, are they actually putting out the number of reports that would be anticipated during that time? Are they completing the number of whatever task they're supposed to be doing that you would expect for that period of time? Um, because one, when it comes to keystroke monitoring software, there can be privacy issues. There may even be labor issues, surprisingly, under the National Labor Relations Act. Um, and as I mentioned, they may not be very effective because their software that in employees have become very adept at using to make it seem as if they're moving their mouse or typing on their keyboard when they're not. So as , um, we mentioned during the annual meeting, you know, one of those tools is a jiggler is the name of the tool. And so it makes it seem like the mouse is moving every so often, even though the employee is not actually utilizing that mouse. Um, one of the things that, Gary, you mentioned a lot of really great points, but from a practical perspective, two things that I would suggest for employers would be having a good break or rest period policy that instructs employees, they need to sign off when they're taking a break. When they're taking a break and they've, they've signed off or clocked out, you know, they shouldn't be performing any work. Um, you know, so covering what the expectations are for breaks and for rest periods. And then also , um, and I know a number of the timekeeping softwares now have this , um, for daily clock in clock outs . There's also a attestation that the hours reported are accurate. This is particularly true if you are one of those employers that does have an automatic meal break deduction, for example. So that the , if the employee says, Nope, I didn't actually take my my meal break today, it catches that in the software. It's not a 100% guarantee , um, that you won't still get like a wage an hour claim, but it is helpful to have that attestation there.

Speaker 2: 13:01

Mm-hmm. <affirmative> , those are excellent points. And I think it goes back to, you know, setting expectations from the very beginning when it comes to these remote workers. Like Gary said, you know, these are people too <laugh> , these are employees just as if they were in person. So thinking about, you know , how are you gonna define those expectations? Is it going to be in, you know, a job description? Is it going to be in a remote work agreement with the individual that sets out what the expectations are? Like do you want to have, you know, defined working hours for these folks? And if so, you can build that into the agreement in addition to the timekeeping and break requirements and expectations. You know , some employers are going to be very concerned about managing costs when it comes to employees working overtime without pre-approval. So you can certainly make that clear as well that these employees should be requesting pre-approval to work overtime just like your employees in person would be doing. And you know , there can be disciplinary consequences for that if they don't comply. Of course you're gonna pay your employees for the time that they're working, but outlining those expectations, you know, do they need to be working only during assigned periods or not? And how are you going to define their productivity? You know, is it going to be, you know, a certain amount of charts reviewed per day or , um, some other measure, but make sure that's clear as well, just like you would for your in-person workers.

Speaker 4: 14:32

Yeah. And Tiffany, I'm glad you mentioned auto deductions for breaks. That that's something that always makes me nervous when employers use an auto deduction system. Meaning, you know, they just sort of assume that the employee takes a , a break and therefore, you know , maybe subtracts 30 minutes from their time every day without actually keeping track of if it was really taken or when it was actually taken. And I think, you know, like there's a lot of pitfalls with that practice , um, especially where I practice in California, which has, you know, very strict rules regarding meal breaks. And I like the point you made about the attestation. I think that could be effective if an employee is gonna use an a , uh, an auto deduction system for, for breaks . But even more generally, I think that can be , um, an , can be of an effective strategy to , um, ensure that employees are, are, are following the rules with respect to breaks . And

Speaker 2: 15:30

Gary and Tiffany , um, I think, Gary, you had mentioned that travel time can be an issue, and I know Tiffany had pointed out some of the various roles that might require travel from location to location or state to state. But what are some tips there, Gary, when it comes to travel time for remote workers?

Speaker 4: 15:46

Well, that's, that's an interesting question. 'cause you know, normally it , it , it might seem kind of a contradiction of like travel time for remote workers. 'cause while they're working remotely, so they don't need to travel, well, that may not be the case. They may be traveling for various purposes. They may , um, um, Tiffany, I think you had mentioned, you know, certain , an IT person for example , that may have to go in person on some, in some circumstances , um, or maybe they're required to come into the office or the hospital or whatever it is for certain trainings or, or meetings or certain, certain type of work. Um, and then there does become the question of, of , um, of travel. And I think, I think what's one thing that's really important when we talk about travel time is looking at the particular jurisdiction. Because, you know, if you have remote workers, first of all, they might be in a , in a variety of states possibly. Um, and those states may have different rules, but also even within a single state , um, that state may have different rules than what federal law requires. So for example, where I practice in California , um, uh, it has, California has more strict rules about travel time than federal law in terms of basically requiring payment for all , um, travel time, even outside of normal , uh, working hours. Um, and then there could be questions of , um, a remote work or , you know, certain, certain type of travel, for example, to the office. Maybe that could be considered commute time that doesn't have to be compensated. But those questions become much more complicated with remote workers if they're not normally reporting to the office or the hospital or a particular work location. So , um, again, I think it's really important to , um, not only keep track of that and and , and monitor that, but really look carefully at both state and, and federal law and perhaps any other local laws that might apply to make sure that you're complying with, you know, all of the rules in the jurisdiction where the employer's located and where the employee is located.

Speaker 2: 18:04

Absolutely. And I think, you know , of course we could probably talk about and travel pay for, for hours, <laugh>, and we're on a short podcast. And the same with the next question that I'm gonna ask you, which is reimbursements. I know it can be tricky with respect to what's reimbursable for employees that are working remotely. Can you just touch on some of the highlights there, Gary, and what employers might wanna be on the lookout for?

Speaker 4: 18:28

Sure. So, you know, when we talk about expense reimbursement, again, we're, we're focused largely on, on , uh, state and local laws. The F L S A , the federal law does not actually require expense reimbursement , um, unless those expenses would actually bring the employees net wages below minimum wage. And that usually with more higher paid employees, you know, which would often many instances be the case in healthcare, you know, that probably isn't a big concern. Still something that you wanna, you know, be sure about. But , um, when we talk about laws mandating reimbursement, and we're probably mostly talking about state laws , um, there's, you know, dozen or so states that have reimbursement laws on the books that vary, you know, and , and require reimbursement to varying degrees and in different circumstances. Um, one of the most robust requirements is in California, again, which is kind of always a theme when we talk about wage and hour laws as well as other employment laws. California tends to be , um, often the most protective or one of the most protective states for employees. Um, but again, you'd want an employer would wanna look at, at the different jurisdictions in which they're located, in which their employees are located, if they're working remotely. Um, and the , you know, what, what might be required, what an employer might be required to reimburse and when could really vary widely from state to state. Um, but even if there's not a legal requirement , uh, employers may still choose to reimburse employees for some or all of their remote , uh, work expenses. And that , um, if an employer chooses to do that, that can have implications that we'll talk about. I want to talk a little bit more about California 'cause um, it has a fairly, well, you know, fairly well developed case law now on, on expense reimbursement. And, and it's sort of at the forefront of, of this issue. Um, in California, you know, a lot of these issues go back , um, a , a decade or so, especially to a case called Cochrane versus Schwan's home service, which , uh, was a case that involved cell phone reimbursement. And in , in this case, the California Court of Appeal found that if an employee is required , uh, to use their personal cell phone for work, then the employer is required to reimburse that employee a reasonable percentage of their cell phone bill, even if the employee does not incur any additional incremental cost . So for example, the employee might be on a plan that has unlimited calling and data, or maybe they're on their parents' plan or someone else's plan in the household, and they actually don't pay any money for their, for their cell phone plan themselves. Court said the employer is still required to reimburse. And kind of the theory was that , um, the employer shouldn't be able to kind of shift that cost onto the employee or sort of get a free ride on the employee's own , uh, cell phone plan. And what that means then is that, you know, there's a lot of ex remote work expenses that an employee might incur, even though they're not actually going out of pocket for it. So for example, if they're working from home and using their personal cell phone , they may very well and very likely already have a cell phone and a cell phone plan, and maybe not, it may not cost them a , a penny more to use that for work, but under California law, they may, the employer may be required to reimburse a portion of that. Um, same. And , and then now that, so it kind of started with that case. Um, and now a lot of plaintiffs are arguing, you know, that the same rules should apply to things like personal internet. If you're working from home in this day and age, you're probably using the internet and , um, and, you know, you probably already had an internet plan , um, may or may not have had to upgrade that in terms of bandwidth and what whatnot for your work purposes. But even if you're not incurring any additional cost under California law, at least that employee is arguably reti , uh, entitled to some amount of reimbursement. And now what we're seeing , um, in cases is employees trying to take it even further. So for example, arguing that , um, not just their cell phone or internet, but also, you know, other equipment that they have to use, maybe they have to get , um, a , a computer monitor or a printer or other types of , um, hardware. Um, they, they're also arguing now that they're entitled to reimbursement for some portion of their electricity or even utilities because they're, you know, using more electricity to power their computer. Or maybe just because the lights are on at home more now because they're working from home and they're using more electricity and they're using more heat or air conditioning because they're working from home. Um, and the law's a little less clear on the extent to which that needs to be reimbursed even in California. But that's certainly where employees are taking, trying to take it when these issues have been litigated. And then I think some employees, and I'm not aware of any case law that's actually decided the merits of this in California or elsewhere, but we also see employees in litigation starting to take it a step even further by saying the employer should reimburse them for some portion of their space that they're using, essentially some portion of their rent or mortgage because they're using some amount of square footage at their house for work now. So the employer should reimburse them so that the theory goes the employer should reimburse them for some portion of that. Um, again, I think that's, that's still sort of maybe a , a step or two away from where the courts are currently on this issue, but it's certainly , um, an allegation that's been raised in many cases now. Um, and you know, yet to be seen how courts might interpret the law and apply the law to those types of expenses in California and then potentially elsewhere as well. Um, but those are some of the main types of expenses , um, that you see with and when these issues get litigated. And also the types of expenses that employers often have in mind when they , uh, are thinking about reimbursing and thinking about, you know, how much to reimburse. Have you have either of you seen any other types of , um, types of expenses that, that are cropping up as a so-called remote work expenses?

Speaker 2: 25:30

I mean, I think it's pretty amazing, Gary. I mean, I , I I can certainly see it though, and , and can appreciate the types of claims that you're starting to see, but I do think it's gonna sound extreme to some folks that are listening. I know in , in Florida we haven't seen that type of case yet. Doesn't mean that we won't get there, but, you know, it's pretty amazing to think that employers might have to pay some of a remote employee's rent because they're using, you know, their space as as a home office. Um, and I guess just in light of that, like any suggestions there or it's just kind of a wait and see, we'll have to wait and see until some of these cases get litigated to be able to have some concrete advice about which way to go. Yeah,

Speaker 4: 26:15

Well I think on, on the one end of the spectrum, cell phone and internet, I think, you know, if, if you start with the premise that in , in a particular jurisdiction that remote work expenses should be reimbursed to some extent, you're probably at least talking about cell phone and or internet assuming employee . Mm-hmm . <affirmative> doesn't have a company provided cell phone with, you know, call not just calling but hotspot capability and whatnot. You know, if they're using their own devices and own internet, then you're probably talking about reimbursing that at least , um, these other issues start to get more, more and more gray, so to speak, in terms of what, what the requirements might be. And I think courts in California especially our , our , our thinking about some of these other costs for sure , um, a lot of these cases have settled <laugh> out here in California. We've seen a lot, we've seen a lot of these types of cases that have grown out of the pandemic. So the, the case that I mentioned before, the California case, the , the Cochrane case was not a remote work case. It was a case where employees I think were more working out in the field and using their cell phones for that reason. Um, but the same principles have been gotten applied to remote work and a lot of these cases came out of the pandemic when employees were required to work from home for certain periods of time. And now I predict at least that as remote work becomes more and more prevalent ongoing and not just a function of the pandemic, yeah , we'll see this, you know, more and more cases and employees , uh, pushing the boundaries more and more. 'cause a lot of employers now, at least in California, have sort of caught on to like, yeah, if we're making, or if it's a remote position, there's probably something we should reimburse. Um, so , um, I think I do envision that employees, when these are issues are litigated and they're often gonna be litigated in class action , uh, litigation, they'll keep kind of pushing the boundaries more and more. But one way that one strategy that employers use is , um, to pay a stipend to employees instead of asking employees to turn in their bills every month or their cell phone bills, their internet bills, maybe their electricity bills or what it , whatever it may be, and sort of try to identify, well, how much was work related , what percentage was work related . Um, in many instances, perhaps most instances in employers sort of sidestep that by paying a stipend, meaning a fixed monthly amount. And when doing that, the employer has the option at least of saying, well, this amount covers everything. It covers your cell phone , it covers your internet, it covers any other, you know, electricity or utilities, anything , um, that you might need for work working remotely. And then the issue becomes not whether they're entitled to reimbursement. Again, when these issues get litigated, it's no longer really a question of whether they're entitled to reimbursement, but become , but it becomes a question of is the reimbursement sufficient to cover their actual expenses? And that becomes a much harder question issue for the , for an employee to litigate a plaintiff to litigate, because, you know, that's highly fact intensive. Um, so that's certainly one strategy. And it's also certainly much easier for an employer to use a monthly stipend than, you know, again, asking employees to submit phone bills and internet bills every month. Um, but that also , um, uh, has, has certain implications, whether it's wage and hour implications or tax implications, which we'll , which we're gonna talk about , um, I think and, but have , have you seen, I mean, have you, what have , what have you all seen in terms of other kind of approaches employers have used to try to try to kind of manage this risk? Um, I suppose again, I mean some, you know, some employers I suppose may choose to, to provide, you know, company cell phones and things like that, but have you seen employers doing other things to try to try to kind of manage this issue?

Speaker 3: 30:45

So honestly , um, in, in my experience, the , the reimbursement of the expense , a lot of that, you know , those questions came up a quite often during the pandemic, but a lot of the questions that I'm getting right now are less related to what's reimbursable while the employee's working at home. Um, because quite candidly, as some of my, my clients would say, you know, it doesn't matter whether it's required or not. Um, even if it's not required, if the market is saying that this is something we should provide, then we need to figure out how to provide it because we wanna stay competitive in the market when it comes to recruiting employees. So a lot of the questions actually that I've gotten, and , and I think the same is true when it comes to travel nurses and some of these other travel positions, is about training and certifications. So for example, with a travel nurse, when they're traveling to a different state, are we going to pay for the training that they need? Are we gonna reimburse for that training? And, and in those instances, federal law would kick in , um, and may require us to pay depending on whether it's voluntary or mandatory. So a lot of the questions that I've gotten actually are more around training licensure certifications. And then for those, and Gary , I'm, I know you kicked it to me , us, but I'm gonna kick it back to you . But for those, the question has really been, when it's a question of licensure or certification or training, does it have implications for the regular rate of pay? In other words, should we include it in the regular rate of pay and is it taxable? So if you could just touch on regular rate of pay and taxation, that would be great.

Speaker 4: 32:34

Yeah , I'll touch on that quickly. So, you know, two separate issues, but they, I think they overlap a lot. Um, and , um, from a tax standpoint, I understand the I r s takes the position that if you're reimbursing , um, just cell phone , just personal cell phone , then you can provide a monthly , uh, stipend. Um, the employee does not have to provide any backup documentation or anything like that. And as long as that , uh, amount is reasonably related to the actual expense, then um, that is not gonna be treated as taxable for the employee. But if you start , um, including other things in a stipend, let's say you're, now, you're gonna say the stipend includes not just cell phone , but internet and electricity and anything else that they might incur, and you're not requiring the employee to actually provide backup support for all that meaning documentation in the form of bills or invoices or whatever it may be, then that is very likely gonna be, or I think under i r s rules would be considered taxable income. Um, and so that has obviously, you know, the tax implications there. Um, and then also if there's , um, you know, concerns about whether you're reimbursing too much, even with just a cell phone reimbursement, if you're reimbursing too much and it goes , uh, you know, too , it goes way well beyond, you know, what the actual expense is , that could be considered taxable as well. And then similarly, from a wage and hour standpoint, if , um, if the amounts that you're reimbursing are , um, are , are , you know, don't, if you're not requiring the employee to provide , uh, documentation, and they are incurring those expenses, sort of regardless of whether they actually incur them. So, you know, for this is kind of analogous to a per diem that an employee might get, and they're gonna get it regardless of whether they incur the actual, you know, meal expenses or whatever it's intended to , to cover. Um, so the same kind of , uh, analysis could apply to remote work expenses. So if, you know, if they're getting internet or phone or some other types of reimbursement, even regardless of whether they actually incur that expense that could result and it being treated as, as wages. And also if there's , um, if the amount of reimbursement is tied to the hours that the employee works, that's another factor that could be considered that could weigh in favor it being weigh in favor of it being found to be , uh, wages. And then the implication there is that , um, those amounts may need to be included in the regular rate when employee is paid overtime or in some instances other types of premium pay , um, that require a regular rate , uh, calculation. So those are all things that an employer needs to , needs to keep an eye on.

Speaker 2: 35:29

Mm-hmm. <affirmative> and I, I've certainly had clients raise concerns to me about, as Tiffany mentioned, how to stay competitive because I know there were some companies before those big , uh, cases and the rulings came out that tried to use stipends as this inflated number to recruit more, you know, travel nurses or other employees away from other organizations. So yeah , it's important to know that that's not <laugh> necessarily a viable strategy as you outlined.

Speaker 4: 36:03

And I think that's a good point too, which is this isn't just about when we talk about whether to reimburse or not, it's not just about what does the law require. In many instances, the employer may choose to reimburse for market reasons and and whatnot. Um, but when they , when they do choose to reimburse, then you've gotta think about these tax implications and these wage and our implications

Speaker 2: 36:24

Mm-hmm. <affirmative> and because a lot of the things that we've been discussing vary so widely by state and sometimes even local county or city laws, you know, how do you stay on top of these things and how do you know which laws apply? Tiffany, you wanna comment on how , um, you've seen others kind of keep up with all the multi-state issues?

Speaker 3: 36:48

It's complex , um, <laugh> . So , um, unlike, and I've learned from, I am not a tax attorney, but I , as I've learned from some of our, our, our tax , um, experts, you know, in the tax realm, you know, the states have worked together to come up with specific laws related to if you're paying tax in this state, then here's how that applies to an employee working in multiple states. Unfortunately, the laws haven't caught up in the same realm in the same way when it comes to things like leave and when it comes to , um, different types of wage and hour issues. Um, so what typically, and, and we see this a lot when it comes to things like paid medical leave , um, or paid family leave or parental leave, fill in the blank leave , um, we look at which law is the most generous, whether it's the one where the employer resides or where the employer is located, and apply that law. Um, I know in the past some of my , um, clients, if they were, if it was feasible to do so, and it typically smaller clients would just apply the most generous law across all of the states in which they have employees. Well, you know, particularly for larger employers, that's not possible because they may have employees in all 50 states. Um, and so in those situations, sometimes it is a , a full-time job or a part-time job just keeping up with the laws in the different states, making sure you're tracking not only what the employee's entitled to, but their accrual rates. If it's a law that has an accrual rate, say for leave and their usage rate of their leave, to make sure you're, you're giving them credit for what they have used and what they still have left. And in some states, there may even be reporting requirements where you have to tell the employee on a regular basis how much leave time they have left . Um, and so I know, for example, for my organization and some others, we ha we subscribe to a lot of , uh, law firm newsletters, like, you know mm-hmm . <affirmative> , Ogle, treena , <laugh> , um, also there , the National Conference of State Legislators has some great resources that like multi-state resources as well that I know I've utilized. Um, and there are some other multi-state surveys that I'll just pull on occasion just to make sure I'm staying up to date . But it's one of those things where you can't just set it and forget it. You have to periodically check to make sure your charts, your little cheat sheets on the, the different laws stay up to date because they change so rapidly.

Speaker 2: 39:35

Absolutely. So those are really good points as far as knowing what the resources are, making sure that you're checking on those and a regular periods to make sure that nothing has changed. And also just knowing who's gonna own that, right. For your organization in different areas , different areas . Uh , so another thing that we touched on a little bit , um, has to do with, you know , how remote workers access information, and it has a lot of implications when it comes to data privacy. Uh, not only when you may be using some type of monitoring software, and of course you'd wanna disclose that to your employees, but also just considering the fact that they're going to be accessing , uh, your organization's confidential information , uh, and you wanna make sure that they're doing that in a secure way and that they're protecting that confidential information, especially in light of other privacy laws that can come into play like hipaa, Tiffany , uh, what are some strategies there for thinking about that and managing risk?

Speaker 3: 40:37

Um, talk to your IT department. First of all. Review the information security policies you already have in place and think about how those would be applied practically for someone who's working remotely. Um, it's, think about, in fact, I would highly encourage every employer to have a V P N or a similar secure network. So even when employees are working outside of an office where they're on a secure system, they're still working essentially through a secure tunnel to the employer's. Um, internet. I would say if think about two-factor authentication with logging in, make sure that the laptops you're providing , that you're for employees that are working with sensitive information , um, if you can supply them with laptops that can be secured, have certain , um, system updates, security patches all up to date , uh, make sure that you're telling employees that they should only save the information, the company data to the network and not to their personal devices. Um, remind , uh, training is also helpful because, you know, we have a number of different generations and different levels of experience with technology in the workplace right now, in the workforce right now. And so we can't make assumptions about what people know when it comes to security and what people know when it comes to identifying a phishing email. So it's really important to just shore up those basics, the knowledge base, the making sure you have the technology to secure your systems and reminding your employees of the policies that are in place. Um, this is true not just for patient information information , but also for other confidential personal information that that employee might have access to. Uh, and the last thing I'll say on this point is , um, for employees that may have to cross borders, you know, for example, I'm in Michigan, so we have employees that frequently go to and from Canada. Um, it's important to educate those employees on what border patrol may have access to when they're crossing the border. I recently sat in on a immigration webinar, and this is, this was new to me, so I'm sharing the wealth, sharing the knowledge here. Um, the immigration attorney actually recommended putting , turning off wifi and putting , um, devices that are connected to the company network in airplane mode, because otherwise, when border patrol is inspecting those devices, they might have access to the entire company system because your device is connected to the system. So just things to think about , about , I would, I would highly recommend talking to your technology people because they can provide you with information related to how best to secure your data.

Speaker 2: 43:37

Absolutely. And if, if an employer does want to consider using a remote work agreement with particular employees, that's something that can be addressed as well as far as security and systems, and then also return of company equipment once employment ends .

Speaker 3: 43:53

So Deanna, I'm just gonna ask you very quickly , um, what is like the top one thing you think employers should consider when they're dealing with reasonable accommodations for remote workers?

Speaker 2: 44:05

Well , that's a really good question. I think it goes back to the theme that we've already talked about today, and that remembering that just because your employees may be working remotely, that they are still going to encounter many of the same issues that your in-person employees might have. So make sure that they have full access to your policies and your training when it comes to equal employment opportunity policies, harassment policies, and accommodation policies. So make sure those individuals know, you know, who would they go to if they need to report a concern under one of those policies, or if they need to request an accommodation. And there've been some changes when it comes to accommodations. Uh, you know, first and foremost when it comes to remote work is if you don't have a fully remote workforce, already many employees got used to working remotely or found that they liked working remotely during the pandemic. And we're seeing more and more requests to work remotely on, on permanent basis coming through as accommodations, right? So thinking through, you know, how you're gonna handle that. And the , the law is the same. I mean, you have to grant , um, an accommodation unless there's an undue hardship on the business under the A D A and the Equal Employment Opportunity Commission has put out some guidance that is helpful for employers. And what this guidance says in a nutshell is that just because you allowed someone to work remotely during the c Ovid 19 pandemic, it doesn't automatically mean that it's gonna be reasonable, right? But it will be looked at as a trial period. So did the employer eliminate some of the functions of the job so that the person could work remotely due to health and safety issues, and now they really need those essential functions back? That could be a reason to deny permanent requests to work from home, but if the employee, you know, was working from home and had no issues doing the job, yes, it's gonna be harder to show that undue hardship there. Um, so that's what it boils down to is , is can the individual perform the essential job functions from home? And, you know, objectively it may also be that, well, yes and no, because we need at least some people to do some functions in person. And if you're already accommodating others working remotely, that could be a reason to deny it. But you wanna go through an interactive process with the individual, just like you would with an in-person worker. Um, there are also some, some new laws that have come out this year, one of them being the Pregnant Workers Fairness Act that requires employers to make accommodations for pregnant workers similar to that under the a D A . And what the law says is that employers can't require an employee to accept an accommodation without an interactive process or a discussion about the accommodation. You also can't deny an accommodation , um, without going through that, right ? So you can't require an employee, for instance, to take leave if there would be some other type of accommodation that would allow them to continue performing the essential functions of the job. And the E E O C gives some guide , gives some examples within the guidance on what some reasonable accommodations for pregnant workers might be under the act. And the ones that stuck out to me as applicable to remote workers were having flexible hours receiving additional break time to use the restroom, eat and rest, take time off to recover from childbirth, et cetera . So there may be some of these things that come into play even with remote workers. And then the last piece that sometimes comes into play is marijuana use and legalized marijuana. Do you have to make accommodations for remote workers to be able to utilize , uh, legalized marijuana? And this is something that varies widely by state law, but one thing that is consistent is you don't have to allow employees to work while they're impaired, right? So if you haven't yet thought about, well, how, how would we spot signs of impairment in remote workers? Make sure you're training your frontline supervisors on that just like you would in any other reasonable suspicion type testing, because it certainly happens where employees look disheveled, they're slurring their words, there's sometimes alcohol or drug paraphernalia in the background, right? And be prepared to address those issues and think about how your drug testing policies are gonna apply to the remote workers in the instance of how are you gonna get these folks tested in a safe way? Um, I know Tiffany, I think you shared there are some vendors that can even come out to the employee's residence or work site to do the testing there, but those are the logistical things you wanna think through so that we're not asking these people to potentially drive while they're impaired. So

Speaker 1: 49:18

I wanna thank everybody for listening to this podcast , podcast and

Speaker 4: 49:22

Enjoy

Speaker 1: 49:23

The rest of your day.

Speaker 2: 49:24

Thanks everyone.

Speaker 4: 49:26

Thank you Tiffany and Deanna. This was fun.

Speaker 1: 49:35

Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L A speaking of health law wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law org .