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COVID-19: Working From Home - Key Considerations for Employers Regarding Employment and Labor Law Issues

2020.04.08

We would like to update you on key considerations for employers who have employees working from home (“WFH”).

From a Korean employment and labor perspective, WFH involves an employee performing work provided under his/her employment agreement at his/her home instead of reporting to the workplace.  And although some employers have planned to end their WFH programs starting this week the Korean government recently announced on April 4, 2020 that it will extend the two-week focused social distancing campaign that began on March 22, 2020 for another two weeks.  Therefore, it appears that a considerable number of workplaces will continue to implement WFH programs.

In terms of the procedures for implementing a WFH program we note that, if the company Rules of Employment (“ROE”), employment agreement, etc. have provisions regarding the location of the workplace which state to the effect that “The Company may implement a working from home program as necessary” or “The work location shall be a designated location within the workplace or a location designated by the Company,” the employer may implement a WFH program without obtaining separate employee consent or undergoing consultations as a basis exists for changing the workplace location.  On the other hand, if no such provisions exist, the employer shall be required to at least consult with the employees concerned.

In regards to working hours, if the company has a system that allows a company to issue specific work instructions from time to time by e-mail, etc., and employees can respond relative quickly, the same start / end / break times shall be applicable during the WFH program.  In addition, the same procedures shall be applicable for employees requesting for and managers approving overtime / nighttime / holiday work.  However, if it is difficult for employers to manage the working hours in such manner, the employees may be deemed to have worked during the working hours specified in the ROE or the employment agreement pursuant to Article 58 (1) of the Labor Standards Act (the “LSA”).

As to attendance management, since an employee working from home has only changed his/her location of work, the employee is still expected to work during such work hours and should he/she perform non-work related matters during such time without receiving approval from the employer, this may be considered a violation of the ROE or internal regulations.  However, the prior consent of employees are required to collect their location information on grounds of working from home.

We also note that the employer will, in principle, be required to pay or reimburse employees for expenses that they incur due to their being on a WFH program such as for mobile phone usage, office supplies, etc.  In addition, if the employer has previously paid for meal expenses, transportation expenses, etc. based on actual expenses, the employer will be obligated to pay employees on a WFH program for such expenses as long as the employees provide proof of such expenses.

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