Establishing a Virginia Teleworking Policy

June 19, 2020


Executive Order 53 directed many Virginia businesses to utilize telework during this public health emergency. Under that order, Professional companies may open their doors to essential employees only if telework isn’t feasible. Professional entities, such as architecture firms and law offices, should implement telework in Virginia both for their safety and to comply with binding executive actions.

Even as we adjust to the new normal and the economy slowly opens back up, many businesses have reevaluated their telework policies and have considered letting employees continue to work remotely. Working from home, whether on a personal computer, work laptop, or internet platform raises unique legal and privacy issues in the Commonwealth.

The experienced business attorneys at McClanahan Powers, PLLC, recommend creating and updating telework policies, including computer user manuals, employee handbooks, privacy policies, and terms and conditions (T&C), for employees during the COVID-19 pandemic. “One size fits all” forms from the internet and hastily drafted telework contracts may not protect your business from liability in Virginia. Discuss the legal implications of telework and tailor a policy to suit your business needs by calling our legal team today at (703) 520-1326 or contacting us online.

Data Privacy Considerations for Home Offices

Many professional offices provide confidential client services. Attorneys, healthcare providers, and professors must protect certain personal information under state and federal law. Most professional offices utilize encrypted software to store client information, and employees may access these platforms from a home office. However, an employee’s household members may easily view or access this private data, and slow connections may tempt at-home workers to download confidential information stored securely on the cloud to their private computers. Personal computers may also automatically store confidential client information or lack the digital security necessary to protect client information under Virginia data privacy laws.

Drafting an at-home data privacy plan for employees can protect employers from potential lawsuits. Consider including the following privacy guidelines in a telework policy:

  • How employees must access confidential information
  • How employees should draft, store, and send work documents
  • client files or sending documents via an insecure email
  • Where an employee needs to perform confidential work
  • Whether employees should lock and/or secure their internet connections
  • How employees should lock and store work computers
  • Provisions for employees unable to meet these requirements

Creating a privacy checklist may help employers identify digital security shortfalls and provide employees with alternatives to protect client data. In addition, it’s essential to have clear telework policies for employees who handle sensitive data in order to limit liability.

At-Home Telework Wage & Labor Guidelines

Anyone working at home due to the Coronavirus knows that lockdown often leads to less productivity. From homeschooling children to entertaining pets, telework can stop and start throughout the day. An eight-hour workday often turns into 11 hours of telework. This schedule may cause issues for hourly employees, including overtime wage disputes and conflicts with shift workers.

Get ahead of wage and labor conflicts by drafting a reasonable at-home work policy for employees in light of COVID-19. Employers may address the following with the help of an experienced Virginia contract lawyer:

  • When an employee is “at work”
  • Hours of businesses
  • Unavoidable interruptions
  • Homeschooling and childcare needs
  • Employee availability
  • Expected work outcomes
  • Maximum/minimum weekly work hours
  • Special considerations for health & safety

Employers may provide employees with different options depending on their situations. For example, one employee may elect flexible work hours to care for children or a sick loved one. Other employees may insist on keeping their regular business hours and agree to avoid distractions. Establishing clear hourly guidelines and work expectations may help businesses avoid employment disputes.

Addressing Technology & Utility Usage

W-2 employees, as opposed to 1099 contractors, generally do not provide their work equipment or office resources. If an employer requires W-2 employees to use their personal computers, internet connection, utilities, and office supplies, they should address reimbursement. Employers may pay employees a one-time technology use fee, agree to reimburse employees for certain utilities or provide business computers and office supplies. Such provisions help maintain the employer-employee relationship and avoid contract and tax disputes. Employers providing employees with computers should also draft a computer-use policy, which may include limiting social media access, illegal activities, or non-work usage.  Employers may consider reserving the right to monitor employees’ use of work computers and the ability to access work computers remotely. This may mean asking an employee to waive all privacy rights while using an employer-owned laptop.

Protecting Against Unlawful Activities

The doctrine of vicarious liability holds employers liable for the negligence of their employees during the course of employment. If a teleworking employee is on the clock and negligently injuries a neighbor during this period, vicarious liability could apply in certain situations. The same could be true if an employee engages in illegal activities during telework hours. Teleworking policies should clearly establish the scope of an employee’s duties throughout the day to protect employers from potential liability. A policy might designate an office workspace, hours, and permissible breaks, and, for example, set forth that an employee who leaves his home office is off duty during this period. Telework policies should reasonably accommodate employees considering the unprecedented nature of the pandemic.

Drafting a Legally Binding Telework Policy

Traditionally, modifying employment contracts requires consideration unless otherwise specified in a prior agreement. Trading a commute for the ease and flexibility of working from home likely qualified as consideration before the lockdown, but employees required by law to remain at home gain little from the tradeoff. Employers might expose themselves to liability by threatening employee jobs to force them into signing telework policies. While Virginia adheres to at-will employment, speak with an experienced employment law attorney before superseding or modifying an employee’s contract with a telework policy.

Update Your Virtual Office Policies & Procedures with the Help of McClanahan Powers, PLLC

Employees will file coronavirus-related employment lawsuits over the next year, including telework contract disputes. Fortunately, you can protect your business now by implementing a clear telework policy before any disputes arise. Contact McClanahan Powers qualified Virginia and D.C. business lawyers today at (703) 520-1326 or online to discuss your teleworking plan.