Employers can now offer teleworking as a way to comply with the Bay Area Commuter Benefits Ordinance (“Ordinance”). Previously, covered employers (those with 50 or more full-time employees within the Bay Area Air Quality Management District) were required to offer 1 of 4 commuter benefit options to covered employees: (1) a pre-tax benefit; (2) an employer-provided transit or vanpool subsidy; (3) employer-provided transit; or (4) an alternative commuter benefit option.

Now, employers may also comply by allowing all employees who can perform work remotely to telework one or more days per week. This is welcome news for employers who are now offering more flexible work options to their employees stemming from the COVID-19 pandemic.

New Telework Option

In order for an employer to be pre-approved for the new teleworking option, the employer must:

  1. Offer a policy that allows telework (i.e., a work arrangement that allows employees to perform work at an approved worksite other than the location employees would otherwise work) one or more days per week for all employees whose assignments can be performed remotely; AND
  2. Not remove existing benefits being offered to employees whose duties cannot be done outside the worksite (e.g., those that cannot telework).

If the employer removes existing commuter benefits from employees whose duties cannot be done outside the worksite, then the telework option needs to be approved by the Air District.

Employers who want to use the telework option must:

  1. Have a written telework policy detailing the accessibility and frequency of the teleworking benefit. The Air District provides model telework policies here.
  2. Notify employees and new hires of the teleworking policy.
  3. Maintain records of the telework program (that it meets the requirements outlined above) and records that show employees were notified at the time the benefit was initially made available and at new hire orientation. Employers must maintain these records for three years and provide them to the Air District upon request.

For more on the telework option, see the Bay Area Commuter Benefits Program Telework Guide.

Employer Action

In light of the new teleworking option, covered employers with covered employees working remotely may want to reassess their commuter benefits strategy. The following are recommended employer actions:

  1. Determine whether to allow all covered employees that can work remotely to telework at least once per week. As a reminder, covered employees are those who worked an average of 20 or more hours per week in the previous calendar month within the Bay Area Air Quality Management District (seasonal and temporary employees who work less than 120 days per year are excluded).
  2. Determine which employees can perform their work remotely and which employees must perform work at the worksite. If an employer has employees that cannot work outside of the worksite, they must ensure these employees are offered 1 of the 4 other commuter benefit options.
  3. Draft a written policy that details the teleworking benefit. Employers can model their policy based on the template provided by the Air District.
  4. Offer all covered employees who can perform their work remotely the teleworking benefit. Employers may want to provide this offer in writing so they have documentation for recordkeeping purposes.
  5. Maintain records of the written teleworking policy and the offer of the teleworking benefit for at least three years.

Additional Resources

 

Emerald Law – Emerald is a Senior Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music, and writing non-fiction.