COVID-19 had a significant impact on the way employers conduct business, with many employees continuing to work on a remote basis. Dietrick Law frequently has inquirieson how to remain compliant with employment laws while administering remote workers. See below for a few of the most common questions and answers.
When must an employer reimburse remote employees? Under federal law, employers are only required to reimburse for work-related expenses when the expenses drop the employee's earnings below minimum wage. However, state laws may require employers to reimburse certain “business-related expenses”. If an employer has employees working remotely in multiple states, it is important to determine if additional state laws may apply. HR Partners recommends outlining reimbursable expenses in a Remote Work Agreement and/or Remote Work Policy.
Are remote employees covered under workers’ compensation? Generally, an employee injury or illness is compensable under workers’ compensation if it arises out of and in the course of employment, regardless of the location the injury occurs. While state laws differ about what is considered a work-related injury, HR Partners recommends establishing the remote employee's normal working hours and job duties in advance through a Remote Work Agreement and/or Remote Work Policy. This may help the employer when evaluating whether claims are truly work-related.
How should an employer complete a Form I-9 for a fully remote worker? The Department of Homeland Security (“DHS”) issued temporary guidance deferring the physical presence requirement associated with completing the Form I-9. As of right now, this temporary policy is set to expire on August 31, 2021. Remote verification is a temporary policy which only applies to workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9 Employment Eligibility Verification.” It is also important to note if an employee is onboarded using remote verification, once the employer returns to normal operations, they have ninety (90) days to physically inspect the employee’s documentation provided during the remote verification process.
Outside of the temporary policy from DHS, U.S. Immigration and Customs Enforcement allows employers to designate an authorized representative to fill out Forms I-9 on behalf of their company, including personnel officers, foremen, agents, or notary public. The Agent must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.
Does remote work impact payroll withholdings? Employers may be required to withhold state income tax based on the employee’s home location instead of the location of the employer’s office. States are taking different approaches to the enforcement of tax obligations on remote workers. While some states have reciprocity agreements with other states, some states have no income tax withholding at all. HR Partners recommends speaking with a Certified Public Accountant or other tax professional to ensure proper income tax withholding for remote workers.