USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
require employees to provide unrequested informa - tion. As a result, the court ruled that whether remote work was a reasonable accommodation must be decided by a jury, not by law. Companies must take care to comply with reimburse - ment requirements in the growing list of states with those requirements. Currently, 11 states have laws requiring reimbursement of certain work-related expenses: California, Washington, DC, Illinois, Iowa, Massachusetts, Minnesota, Montana, New Hamp - shire, New York, North Dakota, Pennsylvania, South Dakota and Washington (plus the city of Seattle, Washington). Wage and hour issues remain key for mobile work. Companies should use a system for hourly employ - ees that pays for all scheduled time, requires accurate reporting of worked time and does not discourage or impede accurate reporting. Employers should be mindful to set policies and procedures for meal break compliance. Working temporarily in a location can trigger paid sick leave obligations for remote employees. By way of example, employees working for 30 days in a year in California gain coverage of the state’s paid sick leave law. Remote employees working in Chicago and New York must receive sexual harassment prevention train - ing under state and local laws. Mandatory federal posters for agencies and laws must be posted or provided in a way that allows employees in mobile settings to access them, including on an intranet or directly via email. State and local laws and agencies require certain posters as well, so employ - ers should consult and research each applicable state labour department. Employers should be mindful of cybersecurity issues for mobile employee arrangements. Options to miti - gate risks include using an encrypted virtual private network (VPN) and banning external drives. 5.2 Sabbaticals In the past, many private sector employers tradition - ally did not utilise sabbaticals outside academia and other specialised areas. However, some employers
are using sabbaticals more frequently in order to attract and retain talent that is more mobile and will - ing to change jobs. Sabbatical details, requirements and eligibility vary greatly and mostly depend on the discretion of the employer, unless a union’s collective bargaining agreement addresses the issue. Federal, state and local laws do not require sabbaticals, but various obli - gations or questions may be triggered by the use of sabbaticals. Typical factors and decisions for sabbaticals include: • which employees are eligible? • length of employment before eligibility; • length of sabbatical; • whether the sabbatical is fully paid, partially paid or unpaid; • whether the sabbatical ends or impacts deferred compensation, and the resulting tax consequenc - es; and • the availability of benefits and benefit accrual rules during the sabbatical. Continued employee qualification and eligibility for health and other benefits are among the most chal - lenging issues when it comes to sabbaticals. Many health insurance programmes require continued full- time employment and/or continuous service. Employ - ees on sabbatical may be unwilling or unable to forgo such benefits, so employers will have to ensure the benefits can apply to sabbaticals or find another acceptable alternative. The same challenges can arise for insurance coverage. Employers should determine if employees on sabbatical can maintain health, dis - ability and life insurance, if a modification to policy requirements can be made or if a substitute policy can be issued. 5.3 Other New Manifestations Many companies are using “new work” approaches, including wellness programmes, desk sharing and fractional employees, to attract and retain talent. These approaches have some benefits and poten - tial pitfalls. One trend seems to have ended: open floor plans. Employers and employees are realising that boundaries and privacy can help with productiv -
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