by Christine Self
As schools and other employers continue or transition back to remote school and teleworking with the latest spikes in COVID-19 cases, employers must consider several employment issues about employee rights under those conditions. There are many considerations for employers as they request or require their employees to telework or when employees request to do so, including the requirement to reimburse employees for all “necessary expenditures or losses” incurred in the employees”™ scope of employment, as outlined in the Illinois Wage Payment and Collection Act (IWPCA) (820 ILCS 115/9.5). These considerations will remain at the forefront as many employers, including local and state government entities, continue to recommend or require telework or other remote work situations until COVID-19 cases decline and widespread vaccination has occurred.
What policies should employers have related to telework?
It is important that employers have a policy related to telework and that the policy be consistently applied. With COVID-19, many employers find themselves allowing or even requiring telework in situations and for employees for whom they would have never previously considered such arrangements. Additionally, many employees are requesting to telework either through an employer policy or as part of a request for accommodation through the Americans with Disabilities Act (ADA). It is important to view employer-created telework and employee-requested telework within their specific contexts.
Employers should also have a reimbursement policy in place and amend it as necessary to consider reimbursements related to telework. An employer telework policy must comply with the IWPCA, amended effective January 1, 2019, to require Illinois employers to reimburse employees for all “necessary expenditures or losses” incurred in the employees”™ scope of employment, with certain limited exceptions. The law states that employees are not entitled to reimbursement if the employer has an established written reimbursement policy and the employee failed to comply with the written expense reimbursement policy. While these expenses have not been at the forefront for most school employers, or perhaps many other employers, this year’s increase in telework has prompted many employers, employees, and employee representatives to look at what might fall under a reimbursement policy.
What expenses are employers required to reimburse when employees are required to telework?
When employees are required to telework, equipment costs (laptop, printer, doc camera, etc.), home office expenses (paper, toner, ink, etc.), phone bills, and internet costs may be concerns for employers and employees that were not previously at issue. In order for those expenses to be reimbursable under the IWPCA, they must be necessary expenditures required of the employee in discharging the duties of employment and must primarily benefit the employer. Under the IWPCA, the employer determines if the expense is necessary for the employee to discharge the duties of employment and if that expense primarily benefits the employer. For instance, where a teacher is required to telework, buys a new laptop, and requests reimbursement, the district should look at its reimbursement policy to determine if such expense falls within the policy. It is reimbursable if the expense was a necessary expenditure, it was incurred in the scope of employment, and the expense primarily benefits the district. It is likely that the district’s reimbursement policy may not specifically cover this type of expense. If the district provides laptops or other hardware for teachers to use for their telework, such expenditure was likely not necessary. If the laptop is of general make that can be used for many purposes beyond teaching, then it may be argued that it is not an expense that primarily benefits the employer.
What if the employer wants to reimburse for certain telework expenses?
If the employer wants to reimburse certain telework expenses for employees, the employer should amend its policy as necessary so that it is clear, concise, and easily applied in a consistent manner. For instance, schools and other employers may want to ensure that employees have a high-speed internet connection beyond what some employees may currently have at home. If so, they may decide to provide a flat reimbursement amount based on what they believe to be a reasonable cost to upgrade employees”™ internet connections for more reliable service. Having that written into a policy helps provide a consistent manner of application that is beneficial to employers.
What if an employee requests to telework, but the employer does not require telework?
If an employee requests to telework as an accommodation specific to that employee and the employer has not required telework, or offered it as a general option to all employees, the employer must evaluate the request carefully. Under the ADA, employers are required to engage in the interactive process of providing reasonable accommodations when employees request them. During COVID-19, many employees have requested telework as an accommodation due to circumstances such as being in a high-risk category. In evaluating the reasonableness of accommodations, employers must consider if the requested accommodation allows the employee to perform the essential functions of the job and if providing that accommodation creates an undue burden on the employer. Employers are not obligated to provide accommodations that create such an undue burden on the employer. Although the determination of the reasonableness of an accommodation and the existence of an undue burden are fact specific, in a school setting, allowing a teacher to telework may require the school to hire an additional staff member to supervise in the classroom while the teacher requesting the accommodation teleworks. It may also encompass the need to purchase and provide additional equipment that would allow for secure remote access capabilities that the teacher does not otherwise have in the home. Such requests may cause undue hardship on the employer.
Employers should be aware that requests for accommodation or requests for leave under local, state or federal policies, including the Families First Coronavirus Relief Act (FFCRA) may present some unique issues during COVID-19. Evaluation of such requests should be undertaken with legal counsel to ensure compliance with relevant statutes. Employers should note that the FFCRA expired December 31, 2020, although Congress extended tax credits for employers, where applicable, for those employers who choose to provide such leave as an option after that date.
Telework has increased tremendously during COVID-19. Many jobs, such as teaching, have transitioned to telework environments even when employers never imagined having those positions in the world of telework. With the current increase in cases and many employers trying to plan ahead, telework will likely remain a common practice for the foreseeable future. Employers can meet the challenges of telework through careful planning and working with your counsel to develop policies that comply with local, state, and federal requirements. If you need assistance, please reach out to the attorneys at Tueth Keeney Cooper Mohan & Jackstadt and let us help you develop appropriate policies.
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Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.
Christine Self practices in the areas of education law and employment law. She has developed employment policies and advised public employers on labor matters and laws such as the Freedom of Information Act and the Illinois Open Meetings Act. She has experience with collective bargaining and disciplinary investigations into employee misconduct. As a former public school teacher, she is committed to assisting schools navigate the legal requirements of the education environment so school leaders and educators can provide the best educational opportunities for students.