Remote Work and Employment Law: Navigating Legalities, Promises, and Reasonable Accommodations
The New Reality of Remote WorkRemote work has transitioned from a temporary solution during the pandemic to a significant aspect of modern workplaces. According to a Gallup survey, in December 2021, 26% of full time employees were still working remotely. Another more recent report suggests that 22 million employed adults continue to work remotely, and projects that 20% of employees will be working remotely by 2025.
This new reality leaves open several employment law-related questions, including:
Do You Have a Right to Continue to Work at Home?Primarily, no. Under at-will employment, employers possess broad authority to alter employment conditions, including compensation and work environment details.
However, employers should acknowledge alternative factors, such as:
What if You Were Promised Permanent Remote Work?Because of the duration of the pandemic, there are people who started jobs after March 2020 and have never worked in person for their current employer. Some may have been told the remote work was temporary, but others were promised that they could count on continuing to work remotely after the pandemic.
Can you enforce this promise? While some agreements may prove enforceable, courts often prioritize an employer's right to amend employment terms (the at will employment doctrine). The two exceptions are:
A written contract: this will protect you only to the extent of the time period in the contract. For example, if it is an offer of a job for two years and remote work is a part of the employment terms, your right to work remotely should be protected for two years. This depends of course on what other terms are in the contract about the employer's rights to terminate the relationship. A binding promise: this is a theory known as promissory estoppel. It is generally difficult to enforce these promises because of the at will nature of the employment relationship, but sometimes possible. Consulting an employment lawyer is advisable for evaluating specific circumstances and potential enforcement of remote work promises. Remote Work as a Reasonable AccommodationUnder state and federal laws that existed long before COVID, an employee with a disability could request a reasonable accommodation. If that employee could perform the essential functions of the job with an accommodation, the employer was (and is) required to engage in a good faith interactive dialogue with the employee to see if there is a reasonable accommodation available.
The key word in this analysis is "reasonable." The employer is not required to incur undue expense or burden in order to accommodate an employee. Pre-pandemic, courts were split on whether remote working was a reasonable accommodations. Much of the debate centered on whether in person presence was an "essential function" of the jobs in question. The prolonged remote work experience might sway courts toward viewing remote work as a feasible accommodation, particularly if in-person presence isn't deemed essential. |
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Meet Our Employment Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as a Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year. She has written a book on employment law: Rules of the Road, What You Need to Know About Employment Laws in Massachusetts, and helped thousands of clients on both the employee and employer side with issues relating to wage and hour laws, including overtime pay, late or unpaid wages or commissions, employee misclassification, and retaliation against employees asserting rights under the wage and hour laws.
Rebecca Rogers: Rebecca is a 2006 graduate of Boston College Law School, and has worked with slnlaw since 2013. She previously worked as an intellectual property litigation attorney for Fish & Richardson in Boston, Massachusetts, and clerked for the Massachusetts Supreme Judicial Court. Rebecca has helped clients with wage and hour disputes, including employee misclassification, late or unpaid wages or commissions, retaliation under the Wage Act, and advice to both employees and employers about wage and hour law compliance.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna has helped clients assess their rights under the wage and hour laws, including employee misclassification, untimely payment of final wages, late or unpaid commissions, retaliation, and advice to small business owners about wage and hour law compliance.
Elijah Bresley: Eli is a 2014 graduate of Seton Hall Law school, and has worked with slnlaw since 2020. He previously worked for a boutique employment law firm outside of Boston, and then for the Labor and Employment department of a large Boston firm. He also spent a year clerking for the judges of the Superior Court in Hartford, Connecticut. Eli has helped clients with wage and hour claims, including late or unpaid commissions, retaliation, employee misclassification, and overtime, and litigated these claims in state and federal courts. He also advises employers about employment policies and wage and hour compliance.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped clients with multiple wage and hour issues, including retaliation, misclassification, and late or unpaid wages or commissions, and litigated these claims in state and federal courts.
How We Can Help
Our experienced legal team is here to assist you in navigating the question of continued remote work. Whether you're an employer seeking to make informed decisions or an employee facing complex issues, we offer tailored advice and representation to protect your interests. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
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