In The West Texas Town Of El Paso, I Fell In Love With Working From New Mexico: Applying Home State Laws For Remote Work.

• Published date: 16 March 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Dickinson Wright PLLC
• Author: Mr Adrian Acosta

March 12, 2022 marks the second anniversary when the National Basketball Association first canceled games because of COVID-19. In the two years since, there have been waves of COVID. Just last year, President Joe Biden made a speech on Independence Day stating: "Thanks to our heroic vaccine effort, we've gained the upper hand against this virus. We can live our lives, our kids can go back to school, our economy is roaring back." However, shortly after the President made his speech, the Delta variant began to surge, and other countries reinstated their lockdowns. The surge was so significant that the administration released statements that there would be no second lock down, no matter what occurred.

Because of the situation's fluid nature, companies have waffled back and forth regarding remote work policies. On March 2, Google announced that their California campuses would return to the office on April 4. However, other companies, including Amazon and Deloitte, have positions that are fully remote. Of course, some companies have a semi-work from home model, where employees alternate between the office and working from home.

Living in a bi-national and tri-state community, companies in El Paso have employees living and working in different states. A trip from downtown El Paso to New Mexico can be about 15 minutes. Accordingly, employers consistently ask, "what law applies?" There are several different scenarios, but the main ones employers typically come across are:

1. An employee's position is fully remote;
2. An employee's position only became remote in response to the pandemic, but the employer plans to return to the office and
3. An employee has a hybrid schedule where they work from home some days but come into work on other days.

The law does not provide a clear-cut answer. However, it does offer some guidance regarding how to approach the unique situation where employers may find themselves.

Unfortunately, Texas law regarding this issue is limited, but a pre-COVID federal court case helps shed light on what laws apply in such a situation. In Rinsky v. Cushman & Wakefield, Inc., an employee sued his former employer for both age and disability discrimination. 918 F.3d 8, 12 (1st Cir. 2019). The employee originally worked in New York for 27 years but then moved to Massachusetts and started teleworking from home in Massachusetts. A few weeks after the plaintiff employee started teleworking, the employer terminated him. One of the employer's stated reasons for...