The Way forward for Working from House

Experts study the regulatory implications of moving to remote work.

The COVID-19 pandemic resulted in millions of Americans working from home for the first time. Some Americans had already worked remotely, but the pandemic hastened a far-reaching transition to remote working.

And this transition will continue, experts predict. In a recent survey of 100 executives around the world, nine in ten executives plan to take remote work as an option after the pandemic. Although only about 10 percent of the workstations offer the option to migrate to remote working, the impact of the move is significant.

From a regulatory perspective, this hasty change has resulted in many workers changing without uniform workplace rules or technological infrastructure. Employers may be subject to different tax laws and labor regulations if they have employees who work across national borders. In addition, new privacy concerns have emerged as managers attempt to oversee employees in the remote environment.

In addition, equal opportunities in the workplace have been compromised. Some experts argue that women are disproportionately affected by teleworking, which can lead to a greater burden of housework and a higher rate of mental health problems. Although people with disabilities have long requested accommodation to work from home to address needs that make physical presence at work difficult, such as mobility impairments, some people with disabilities, such as new legal frameworks, require access to ensure virtual spaces.

The occupational health and safety administration has currently not issued any home office regulations for remote work. The Fair Labor Standards Act allows remote working agreements as long as accurate time recording is in place and payment complies with the requirements of the Minimum Wage Act. In response to the rise in teleworking and fair pay concerns, the US Department of Labor recently clarified that the law requires employers to pay for all hours they know or have reason to believe have been done.

The US Equal Employment Opportunity Commission (EEOC) enforces Title I of the Americans with Disabilities Act (ADA), which requires employers with more than 15 employees to provide “reasonable accommodation” to people with disabilities as long as it does not constitute “undue hardship”. “The EEOC recognizes teleworking as a possible reasonable accommodation.

This week’s Saturday seminar will focus on legal concerns related to the future of remote working.

• Employers choosing to work remotely for their employees must be aware of several legal concerns following the pandemic, explains Isaac Mamaysky of Albany Law School in an upcoming article in the UC Davis Business Law Journal. To avoid violations of civil rights, employers should choose objective categories and review the varying implications of their policies when some of their employees stay at home while others return to the office, he argues. Mamaysky explains that teleworking employers may face the possibility of their companies being subject to multiple state labor laws if their employees work from home across state lines. Employers are best placed to avoid liability and increase worker productivity when they let workers choose their job, suggests Mamaysky.
• In a recent article, Harvard Law School’s Tammy Katsabian examines the privacy implications of teleworking. Katsabian explains how home workplaces are hybrid spaces that allow employers to monitor teleworkers and translate the cost of securing the job to workers in a way that disadvantages workers based on gender and socio-economic status. To regulate invasion of privacy, Katsabian suggests privacy-by-design requirements for tech companies, negotiating requirements for employer privacy policies, and a proportionality test to balance employers ‘economic interests with workers’ privacy rights. To counter gender and socio-economic inequalities, Katsabian recommends employers provide everyone with the necessary teleworking infrastructure regardless of their skills. Katsabian also argues that the government should promote tech education so that more people have the opportunity to take up jobs that can switch to teleworking.
• In an article in the Washington University Journal of Law and Policy, Michelle A. Travis of the University of San Francisco School of Law points out that the COVID-19 pandemic has challenged traditional court deference to employers when it comes to it , workplace accommodation under the ADA. Recognizing the flexibility of work during COVID-19, Travis recommends the courts to heed the EEOC’s conclusion that the ADA does not require physical attendance as an integral part of work and changes in working hours to be considered reasonable accommodation. Travis is demanding that courts deny remote work accommodation only if employers can demonstrate that a flexible work schedule would create “undue hardship” for employees.
• How the ADA applies to virtual health care and employment remains an open question, explain 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 an 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 accommodation in stationary offices, does not translate perfectly to medical videoconferencing in jurisdictions that do not recognize websites as places. To ensure health care and employment for the deaf or hard of hearing, Reid, Vogler, and Alkebsi are calling on health care providers and employers, video conferencing platform providers, and external translators to coordinate to ensure access to health care and employment in virtual spaces.
• In a recent study, Thomas Lyttelton and Emma Zang from Yale University and Kelly Musick from Cornell University examine the effects of teleworking on gender inequalities. They find that the gender gap in childcare is narrowing as teleworking increases the time spent on childcare for both fathers and mothers. On the other hand, they claim that teleworking widens the gender gap in housework, as teleworking mothers do more housework than fathers and work with a child more often, which can be detrimental to productivity. Teleworking mothers reported greater anxiety, loneliness and feelings of depression than teleworking fathers. Lyttelton, Zang and Musick argue that policy makers should consider the different effects teleworking has on mothers.
• The transition to teleworking during the COVID-19 pandemic accelerated the transition to more precarious employment by shifting labor costs from employer to employee, argues Phil Lord of Carleton University in an article published in the Denver Law Review. To address this problem, Lord suggests that governments implement universal retirement plans funded by corporate taxes to help workers have a more stable future. Lord argues that governments should address the inherently unequal effects of homework on already disadvantaged workers. Workers with children, shared space, and limited technology may have a harder time working from home than wealthier, non-childcare colleagues who have private space and adequate technology. Lord recommends introducing a variable tax credit for those with a greater burden from home to offset the varying effects of remote working.

The Saturday Seminar is a weekly feature aimed at getting the kind of content into shape that would be conveyed in a live seminar with the participation of regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills current research and scientific papers on the topic.