How States are Reshaping Nexus Laws for Remote Employees Due to COVID-19

September 2020

Are you one of the many people in the United States who started working from home this year as a result of the coronavirus pandemic? You’re not alone. And while it is unclear how much longer the nation will be in the grips of this crisis, social distancing practices are likely to remain in place for most organizations. Some of the country’s most recognizable brands, including Facebook and Google, have already announced a work-from-home option that will extend through July 2021 for all of their employees, while others have made the ability to work remotely permanent.

As more and more organizations make the decision that their staff members can work from home either permanently or on a long-term basis, they may need to take a closer look at how nexus laws will be addressed — especially as several state governments are beginning to address work-from-home employees in terms of nexus and on tax revenue.

Nexus Basics

Traditionally, a state tax obligation is established when a business has a physical presence within its borders. That is what creates nexus. For example, if a Floridian goes to New York for a temporary job placement, they have an income tax obligation in New York for the money that they earn there. And if a Californian company places employees in Texas, then the company would have an obligation to follow Texas laws and pay Texas sales tax.

While New York Governor Andrew Cuomo explicitly continued making temporarily remote employees in New York liable for state income tax when COVID-19 struck, several states (including Massachusetts and Pennsylvania) made clear that the virus-related remote work would not trigger nexus obligations, at least as long as official work-from-home orders or states of emergency lasted. Today, as mandates are being lifted but companies continue to allow or enforce work from home, those states are beginning to reconsider their position.

Congress’s Position on Nexus During COVID-19

While not every state has begun to address the tax ramifications of working-from-home due to COVID-19, Congress has. On July 27, 2020 new legislation was introduced with the goal of limiting the amount of state income tax that could be charged on income earned in state to residents of another state. The proposal revises Section 403 of the American Workers, Families and Employers Assistance Act (S. 4318), which says in part:

“No part of the wages or other remuneration earned by an employee who is a resident of a taxing jurisdiction and performs employment duties in more than one taxing jurisdiction shall be subject to income tax in any taxing jurisdiction other than: (A) The taxing jurisdiction of the employee’s residence (B) Any taxing jurisdiction within which the employee is present and performing employment duties for more than 30 days during the calendar year in which the wages or other remuneration is earned.”

The revision would extend the 30 days in part (B) to 90 days for calendar year 2020 “in the case of any employee who performs employment duties in any taxing jurisdiction other than the taxing jurisdiction of the employee’s residence during such year as a result of the COVID-19 public health emergency.”

Although this legislation has not been acted upon, we are hopeful that the federal government can provide overriding guidance on this issue. Without uniform guidance, each state is free to set their own nexus standards.

Nexus is a complicated topic. If you’re looking for additional information on nexus, click here. And as always, Cray Kaiser is here to answer your questions. Please contact RBI member Cray Kaiser today to discuss how nexus impacts you and your business during the pandemic.