Aaron Tandy of Pathman Lewis in Miami.

The coronavirus outbreak in the United States and in other countries has caused businesses to close offices or encourage their employees to work from home. Apple CEO Tim Cook took the step to send a message to his company's global workforce to consider working from home for the next week, if their job allowed. While  businesses or their employees may consider telework a positive, health-related preventive measure, it may not always be the most optimal solution for the business itself and may not be available for some businesses altogether because of security concerns or the inability to provide services.

Businesses considering moving their workforce, even temporarily, to a teleworking model should consider the following five issues before embarking on a wholesale conversion:

Available Resources and Resource Allocation

While it is likely that many employees have access to hardware (laptops, computers, tablets), software and remote-access services, not every employee will have all of the tools necessary to telework. Similarly, while many businesses have their own equipment available, it is usually only available on a limited basis and in a limited  number—and deciding who will have access to the company's equipment may present challenges.

Furthermore, businesses will have to decide if they are going to invest in additional resources to telework including purchasing equipment and additional licenses for multiple users, updating their network to account for an increase in ISP traffic, and increasing cybersecurity and privacy protections that come with more people accessing their servers and platforms.

Security Concerns

Allowing telework does not relieve an employee of ensuring that confidential information of the  business or its customers/clients is secure while using remote-access devices. Therefore, businesses need to set parameters for how sensitive materials are handled and must educate and re-educate employees on the necessity to take precautions to preserve the privacy of client data. Furthermore, businesses should mandate requirements for having security protocols and anti-virus software installed on home computers or personal devices being used to telework. They should consider paying to upgrade the employees' home internet connection for faster and more reliable communication, as well as requiring employees to add capabilities such as skyping conferences and printing from remote work locations. However, employers must balance the need to protect sensitive information.

Communication/Collaboration

One of the biggest challenges for any organization considering remote office work is the logistical difficulties and challenges for communications and collaboration among staff. Telework tends to encourage flexible schedules which can impede smooth interactions between team members and hinder collaborations, especially in instances  when emails and phone calls or even skype interactions are poor substitutes for face-to-face interactions. Therefore, managers and supervisors may find themselves providing more direction and directives to staff than in a shared office setting and need to be able to step up to meet deadlines and keep people on task.

Management/Tracking Productivity

Another significant consideration for moving all operations to a telework model is the difficulty in tracking the productivity of employees. Unlike daily in-person interactions, managers often are not able to easily keep track of daily progress  given that employees often record when they complete tasks rather than where they are in the middle of such tasks.

Supervising remote employees requires managers to set milestones or progress check-ins and then use tools to prompt employees to provide notice when goals or points are achieved. Managers  may have to develop additional means of providing encouragement or validation when they cannot simply walk past someone's work station. Similarly, keeping track of time for hourly employees entitled to overtime is a more difficult task when managing telework.

Legal Issues/Insurance Coverage

Without creating a comprehensive list, closing offices and allowing employees to telework does not relieve employers from being required to follow employment laws such as wage-and-hour overtime laws, even if verifying and tracking hours worked remotely is difficult. Employers cannot simply reclassify their employees as independent contractors just because they are now working remotely. Similarly, hourly, nonexempt workers who are not able to telework are only paid for hours worked and if the office is closed, they may leave to find other jobs.

Moreover, companies that have already moved to a telework base, report that they are more likely to see the amount of overtime increase, unless and until companies put in place methods of monitoring employees who telework. In addition, employers must make sure their insurance is in place to cover remote workers who may be entitled to workers' compensation for accidents that happen during work hours even if they occur at home. Guidelines for home-based worksites are available from several agencies, including OSHA.

More Issues to Consider

Finally, it is important to recognize that while there are several more issues that individual businesses may confront when converting their employees to remote access including recruiting talent, developing new business and expanding their operations, telework also creates issues for the "telecommuter." They include keeping employees motivated, preventing employees from being distracted by their surroundings (usually at home), preventing employees from becoming "disconnected" and potentially leaving, and creating a sense of consistency in experiences.

Aaron Tandy heads Pathman Lewis' employment law practice, helping employers and employees navigate complex employment issues. Tandy can be reached at [email protected].