Seyfarth Synopsis: As employers around the globe consider what their organization’s post-pandemic return to work will look like, one thing is certain: hybrid and remote work arrangements will be part of the new normal.

Creating a sustainable flexible work environment requires consideration of nearly every facet of business operations. From HR and real estate, to health and safety and diversity initiatives, employers are faced with a multitude of issues to consider when developing a hybrid and remote framework that meets market demands, sustains company culture, and is legally compliant.

In fact, Seyfarth’s recent Future of Work pulse survey found that navigating remote and hybrid work was the number one concern in-house legal and business leaders have coming out of COVID-19.

Below are six tips to help guide global employers through this emerging area:

  1. Properly document working arrangements.

As employers begin to formalize hybrid and remote working arrangements, documenting the agreed upon location(s) of work is not only best practice, but may be legally required.

In particular, outside of the US amendments to existing employment contracts may be necessary, or in some cases, entirely new agreements may be required. For instance, in just the past year and a half, new telework/remote working laws have been passed in Spain, Colombia, and Mexico, among others, which impose specific employment documentation obligations in relation to the working arrangement.

For new employees, consider incorporating hybrid or remote working language into offer letters and employment contracts. This not only ensures legal compliance where necessary, but also clarifies working arrangement expectations with new hires from the start.

  1. Tread carefully when considering requests for cross-border remote working.

While the concept of being able to work from anywhere in the world may be appealing to employees, employers should be very cautious when considering such requests. Cross-border working raises a host of issues—from corporate and income tax implications, to work permit and data privacy considerations.

From an employment perspective, cross-border remote work can implicate the labor and social security/insurance remittance laws of both localities, potentially leaving an employer at risk of claims or fines if the proper laws have not been considered. The ability to protect intellectual property and confidential information can also be impacted where there is a dispute about which law applies to the employment relationship. To learn more about managing cross-border remote working, see our previous alert here.

  1. Understand the employer obligations regarding expenses for a home-working arrangement.

Employers must not only consider the business cost impact of hybrid and remote working, but also need to understand the legal obligations relating to expenses and equipment. In particular, employers should be aware of what home-working expenses must be borne by the employer and what expenses must or can be reimbursed. Similarly, an understanding of whether home office equipment must be provided is also essential.

The permissibility of stipends and allowances, as well as their impact on other compensation elements, should be taken into consideration. In certain jurisdictions, a stipend or allowance may need to be included in the calculation of other compensation such as bonuses, vacation pay, and severance, increasing overall costs.

  1. Evaluate occupational health and safety issues that are specific to hybrid and remote work.

Working from home, whether on a fully remote or hybrid basis, introduces new and distinct health and safety considerations for employers. As a starting point, consider the legal obligations. For instance, some countries have health and safety requirements that are specific to the remote working environment such as conducting audits of the workspace or providing certain equipment.

Then, consider other health and safety issues such as mental health and employee wellbeing from the remote working perspective. While there may be health and wellbeing initiatives in place for office workers, consider how these initiatives translate to remote workers. For example, remote workers may be more prone to feelings of isolation than those in the office. As such, mental health initiatives need to adapt and evolve to reflect the wellbeing issues that employees may face in a flexible working environment.

  1. Ensure diversity, equity, and inclusion efforts consider hybrid and remote working populations.

Diversity, equity, and inclusion efforts remain a top priority for many employers. As flexible working arrangements become a more standard offering, DEI policies and practices must take into account the impact of hybrid and remote working. For example, consider how mentoring and leadership training programs are best structured and delivered to hybrid and remote workers and ensure opportunities for all employees, irrespective of their work arrangement.

  1. Embrace hybrid and remote working as a recruitment tool.

Employees want flexibility and in the post-pandemic era; they will be expecting it as an option. If hybrid and remote working becomes the new norm as expected, companies that develop a more comprehensive flexible working plan can leverage that internal framework as a tool to attract talent. Being able to offer not only the option of flexibility, but a thoughtful and holistic business approach will help distinguish companies as employers of choice.