Telecommuting is not a new phenomenon. Whether on a full-time, part-time or sporadic basis, telecommuting has been voluntarily offered by employers, and in some cases, required as an accommodation for an employee with a disability for many years. And of course, for many employers telecommuting became a necessity during the pandemic. As employers are returning to more traditional work arrangements, however, many are faced with employees who wish to continue working from home. The push to normalize remote work is not, however, limited to employees. Many employers are taking the initiative to make this option more permanent as well in an effort to attract and retain talent.
Whether the impetus is employee or employer driven (or both) employers should review their policies and practices to avoid risks associated with telecommuting. Remote work, like other flexible work options, should be governed by a formal policy that addresses legal issues that can arise with a remote workforce including the following:
- Compensation/Hours Worked. Hourly employees, both those who telecommute and those who don't, are entitled to overtime compensation for all hours worked in excess of 40 hours in a work week. One of the attractions of remote work—the flexibility it provides to employees—creates a work-schedule challenge for employers. Employers who allow telecommuting should establish a mechanism to track hours worked and create clear guidelines for employees to follow regarding adhering to work schedules, working overtime, etc.
- ADA Accommodations. For employees who are expected to work onsite, an employer may have to allow working from home as an accommodation under the Americans with Disabilities Act (ADA), unless doing so would impose an undue hardship on business operations. The potential health risks to working onsite for employees with certain underlying health conditions has added new elements to the "disability" analysis.
- Criteria for Selection. Inevitably there will be situations in which an employer will not agree to an employee's request to work from home. A policy that establishes criteria used in determining who will be allowed to telecommute is essential to defend against a claim that the policy is applied in a discriminatory manner (e.g., favoring younger over older employees, favoring one gender over another, denying requests from minority employees, etc.).
- Data Security and Confidentiality. Whether an employee is using his/her or company equipment, steps must be taken and guidelines established to guard against data breaches and to protect confidential information, including guidelines regarding the secure destruction of hard copies of documents that may be printed at home.
- Tax Considerations. If a telecommuter's home office is in a state other than where the employer's business is located, both the employee and employer should ascertain whether there will be any adverse tax consequences as a result of such an arrangement.
- Work-Related Injuries and Safety. The fact that an employee works from home does not shield the employer from workers' compensation claims. Employers in most states are liable for injuries that occur to an employee in the course and scope of employment, regardless of where they occur. Employers should verify with their workers' compensation carrier that injuries occurring at an employee's home will be covered. Employers should also establish reporting procedures and workplace guidelines to minimize the chance of work-related injuries, incorporating any guidelines established by the carrier.
- Preventing Virtual/Remote Harassment. Although harassment typically brings to mind inappropriate physical touching or verbal remarks in an in-person workplace, a hostile work environment certainly can exist in a remote workplace. Cyberbullying via email, text, or private group chat, verbal bullying, and inappropriate comments or conduct during virtual meetings can and do occur, and can be actionable even when the conduct does not occur in a traditional workplace. Employers should review (and revise if necessary) their existing anti-harassment policies to ensure that they cover conduct expressed through virtual mediums and communication, in addition to training managers to look for signs of virtual/remote harassment.
- Use of Company Equipment. When an employee is provided with a company computer, guidelines should be established restricting its use to the employee and only for work-related matters. Further, employees should either be prohibited from using personal computers for work or strict protocols should be established, including installation of anti-virus and anti-malware software, prohibition against downloading documents, remote wiping, etc.
- Limitations on Remote Work Functions. Issues such as limitations where remote work can be performed, whether the employee can conduct work-related meetings at their remote work-site, etc. should be addressed.
- Policy and Agreement. The above issues, along with others that are relevant (contact information, compliance with all company policies, mandatory attendance at meetings, paid time off, accessibility, insurance, and the ability to end or modify a remote-work arrangement) should be addressed both in a Telecommute Policy provided to employees and a Telecommute Agreement entered into with employees who are approved to work from home.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
