The debate over working from home continues, reaching a high point in 2013 when Marissa Mayer, then CEO of Yahoo, sought to curb the practice. However, as the Coronavirus continues to spread across the U.S., more companies are instructing their employees to work-from-home as a social distancing technique to help contain the spread and remain productive.  No doubt advances in technology and widespread availability of broadband access have made it possible for many to carry out their employment duties from anywhere.

But, of course, remote work is not available for everyone. Restaurant workers, retail store employees, delivery drivers, and other occupations cannot telecommute. However, when work can be performed from home, there are a range of issues for businesses to consider as the workplace expands.

By no means an exhaustive list of the all of the issues that may arise, here are some items to consider when implementing a work-from-home policy.

  • Making the decision
    • Review existing resources, applicable policies, and customer/client agreements to determine if remote work is feasible, prudent, and contractually permissible.
    • Have a plan for resources, communications, expense reimbursement, etc.
    • Review insurance policies (e.g., employee benefits, workers compensation, cyber, etc.) to ensure coverage.
    • Stay on top of developments as plans may need to be changed.
  • Confirm the IT infrastructure can support remote work.
    • Be ready to address systems and equipment needs of employees who may not be set up to work from home.
    • Beef up staffing, including help desk capacity to support workers not used to remote work.
    • Ensure data privacy and security (see below).
  • Communicate clearly and consistently.
    • Ensure critical lines of communication between management are open.
    • In the course of developing communications to employees, examine existing policies closely, such as confidentiality, written information security programs, business continuity, bring your own device (BYOD), etc. Companies without these policies or a comprehensive telework policy, should consider putting them in place. In general, all existing company policies should apply whether an employee is working at the office or at home.
    • A localized approach may be warranted based on local conditions. But, be sure managers are on the same page to avoid inconsistent application of policy.
    • Provide employees system access instructions and where to go for help.
    • Outline best practices for maintaining a safe “workspace.”
    • Be understanding and solution-oriented
  • Ensure data privacy and security.
    • Implement the work-from-home arrangement consistent with company’s written information security program to ensure the access, transmission, and storage of confidential business and personal information is safeguarded. Some key safeguards include:
      • Permit access only through VPN or similar connection.
      • Require two-factor authentication.
      • Supply employees with secure laptops.
    • Communicate critical reminders for employees, such as
      • Elements of confidential business and personal information that warrant protection.
      • Minimum necessary rule – basically, only use confidential and personal information as needed to complete the employee’s assigned tasks.
      • Being aware of phishing attacks, which are a particular concern now as threat actors are using the coronavirus as part of their attacks.
      • Knowing where to report a data incident.
      • Following instructions for system updates and security patches.
      • Saving company data only on the network, and not personal devices.
      • Not permitting others to access the company’s systems, including the personal device that has access to the company’s systems.
      • Setting devices to lock automatically for periods of nonuse.
      • Avoid printing sensitive corporate materials unless the reason to do so outweighs the risk.
      • Not sending sensitive corporate data to personal email or cloud accounts.
  • Obtain employees’ agreement to conditions for remote work. Items to cover in the agreement might include:
    • Continuing requirement to complete work assignments.
    • Maintaining availability during normal business hours.
    • Adherence to the company’s data privacy, security, and confidentiality policies.
    • Maintaining safe conditions and safety habits at the home office as established at company facilities.
    • Ensure all work time is recorded.
  • Consider tax issues associated with employees working from home, including those out of state, and reimbursement for costs related to equipment and service-related costs needed to perform work duties.

Jackson Lewis attorneys from multiple practices and industries are actively assisting businesses on the rapidly evolving Coronavirus/COVID-19 workplace health challenge. We are closely monitoring and updating our information as the situation continues to evolve. Below are some additional important resources to help answer some of the most common questions:

New Jersey Releases Guidance on Employee Leave Benefits Amid COVID-19 Outbreak

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.