United States: Telecommuting - Legal Issues About Employees Who Work In Pink Bunny Slippers

Somewhere between ten and twenty million Americans now "telecommute" at least one day a week, and these numbers are expected to increase significantly. See, e.g., Carol Kleiman, Telecommuting Attitudes Appear to Be On the Move, Chicago Tribune, April 11, 2000 (Internet Edition). While many recent articles extol the benefits to employers from telecommuting, (e.g., increased productivity and employee loyalty), few have addressed the potential legal risks that telecommuting creates for employers. Some potential problems include:

• accurately tracking hours worked at home under the Fair Labor Standards Act ("FLSA");
• establishing telecommuting as a "reasonable accommodation" for other employees under the Americans with Disabilities Act ("ADA");
• inadvertently extending, as a practical matter, an employee’s twelve week leave allowance under the Family and Medical Leave Act ("FMLA"); and
• worker’s compensation claims stemming from accidents suffered in the home.

These potential problems can be headed off, or at least reduced, by a policy that restricts telecommuting to specific levels of employees and/or sets bright-line rules for who can and cannot telecommute.

The FLSA requires that employees, who are not specifically exempted, be paid overtime for working hours beyond the standard forty hour workweek. 29 U.S.C. §§ 206, 207. Hours worked at home by telecommuters count the same as hours worked in the office for overtime purposes under the FLSA. 29 C.F.R. § 785.12. Thus, an employee who spends 30 hours working in the office, but spends an additional 20 hours telecommuting from home, would be entitled to 10 hours of overtime pay unless that employee falls within a specific exemption. Employers can and should eliminate the problems inherent in tracking hours worked at home by restricting telecommuting privileges to only those employees who are exempt under the FLSA.

The ADA requires employers to "reasonably accommodate" disabled employees. 42 U.S.C. § 12112(b)(5)(A). Courts have held that the ADA does not require employers to allow disabled employees to work from home. See, e.g., Vande Zande v. Wisconsin, 44 F.3d 538, 545 (7th Cir. 1995); Tyndall v. Nat. Educ. Centers, Inc., 31 F.3d 209, 213-14 (4th Cir. 1994). Yet, employers lose the benefit of this general rule if they indiscriminately permit employees to telecommute. See Davis v. Lockheed Martin Operations Support, Inc., 84 F.Supp.2d 707, 713 n.2 (D. Md. 2000) ("Certainly, as employers increase their reliance on telecommuting, work at home will often be a reasonable accommodation"); Davis v. Guardian Life Ins., 2000 WL 122357 (E.D. Pa. 2000) (denying summary judgment to employer who required disabled plaintiff to report to office on scheduled days, because employer had previously permitted her to work exclusively from home for at least a year). A specific telecommuting policy (only employees in X, Y, or Z jobs) would offset arguments that telecommuting is inherently a reasonable accommodation for employees beyond its scope.

Under the FMLA, an employer is required to provide an employee with twelve weeks of unpaid leave per year when the employee is unable to perform his job due to: (a) the birth a child; (b) the placement of a child for adoption or foster care; (c) the care of spouse, child, or parent with a serious health condition, or (d) a serious health condition. 29 U.S.C. § 2612(a)(1). Employees may take leave "intermittently or on a reduced leave schedule," such as working part days, or by telecommuting from home. 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.205(a). However, the hours spent working at home cannot be counted against an employee’s 12-week FMLA leave allowance, because the employee would obviously still be performing his job. Parker v. Sony Pictures Entertainment, Inc., 19 F.Supp.2d 141 (S.D.N.Y. 1998), remanded on other grounds, 204 F.3d 326 (2d Cir. 2000); 6A Wages & Hours Manual (BNA) 99:3065 (July 21, 1995 Opinion Letter). Thus, the problem with allowing an employee on FMLA leave to telecommute for part of a day is that this ineluctably lengthens the time spent away from the office. For example, an employee on FMLA leave to care for an ailing parent who telecommutes for half of each day, would not exhaust his FMLA leave for 24 weeks. Restricting the categories of employees who telecommute would decrease disruptions caused by such absences.

Workers’ compensation statues, which provide for payments to employees who have suffered accidental injuries at work, cover injuries that occur in the home if the employee has been directed or permitted to work at home. See 82 Am. Jur. 2d, Workers Compensation § 276 (1992). Moreover, injuries sustained "while taking a brief pause [from work] to minister to the various necessities of life" (e.g., eating), are compensable. 82 Am. Jur. 2d, Workers Compensation § 283 (1992). Thus, accidents with kitchen knives or slips in the family bathroom, arguably would be covered by workers compensation for telecommuting employees. Again, restricting the categories of employees permitted to telecommute would reduce the potential number of such claims; the key is finding the right place to draw such lines in each discrete business setting.