A Return to Work Q&A for Employers

06.10.2021

 1. Am I required to continue to permit employees to telework?

No. The EEOC has explained that the fact that an employer temporarily allowed employees to telework for the purpose of protecting their safety from COVID-19 does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. To the extent that an employer is permitting employees to telework because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. That being said, the EEOC has advised that employers should consider any new requests to work from home in light of their and their employees’ experiences during the pandemic.  

2. If I employ someone in a different state, do I have to pay taxes in that state?

Generally, if an employee lives in one state and works in another, the employer must withhold taxes for the state in which the employee works. However, if the employee’s home state and work state have a reciprocal agreement, and if the employee meets the reciprocity criteria, the employee can request that taxes be withheld from his/her home state. For example, the following states have reciprocity with Virginia: District of Columbia, Kentucky, Maryland, Pennsylvania, and West Virginia.

Different criteria apply under different state reciprocity agreements. If the employee qualifies under a reciprocity agreement, the employee’s wages and salary would be exempt from work state income tax withholding under the work state income tax withholding rules. If the employer does not have nexus with the employee’s home state, the wages and salary also would not be subject to withholding under the employee’s home state withholding rules. The employee would not report such wages and salary as income to the work state, but would report such wages and salary as income to the employee’s home state (including by filing quarterly estimated tax payments to the employee’s home state, if applicable under the filing requirements of the employee’s home state). Note that employers must still file withholding returns whether or not there is withholding tax owed.

3. What post-pandemic policy updates should I consider?

COVID-19 has dramatically expanded remote work for many employers, and for some, that expansion may be permanent. Employers should consider developing (or updating) a remote work policy that, among other things, provides employers with flexibility to evaluate whether a telework arrangement is suitable for a particular position, ensures that employees are working and productive during normal work hours, clarifies the protocols for working from home, and guards against unauthorized overtime.

Employers should also revisit their job descriptions and essential functions of positions in order to make a determination as to whether and to what extent in-person attendance is an essential function of the position. If in-person attendance is an essential function of the position, then employers would be wise to document the reasons why.

4. Can I require that my employees get the COVID-19 vaccine?

Yes, subject to the reasonable accommodation provisions of Title VII and the ADA. In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. Further, the EEOC has explained that it would be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

5. Will the Department of Labor issue any guidance on remote work arrangements?

Probably.  Remote work arrangements implicate the Fair Labor Standards Act (FLSA) and its state law counterparts, and the blurred line between home and work has the potential to lead to wage and hour claims (including violations of overtime rules). Employers must pay at least the minimum wage for all hours worked, and teleworking can make those hours difficult to track. Further, employers may find themselves having to navigate the laws of states where they do not operate because employees have relocated there while working remotely. It seems likely that the DOL will issue some guidance for employers with respect to these remote work situations.

6. Should I record Zoom meetings, or allow my employees to record Zoom meetings?

Most states (including Virginia) are one-party consent states, which means that it is lawful to record conversations so long as one party to the conversation consents. However, some states (like California) are two-party consent states that require all parties to a confidential communication consent to the recording. The safest course of action is to treat a videoconference the same way you would treat an in-person conference or a telephone conference—before recording, make sure to obtain consent. Consent can be easily obtained regardless of which videoconference platform is being used by announcing to all participants at the beginning of the meeting that you are recording. 

If you do not want employees to record meetings, then your policies should make clear that recording meetings is prohibited, or allowed only with the consent of all parties.  If you create a culture of trust, most employees will probably not feel the need to record meetings  Ensuring that an independent witness is present, keeping notes of conversations with employees, and following up on conversations with employees are all ways that employers can build a culture of trust and reliability.

Have others questions about the post-pandemic workplace? Contact Jaime Wisegarver in Hirschler’s employment group.