With as many as 30 million Americans working from home at least one day per week, “telecommuting” is a growing trend among US employers. Any employer considering introducing such a policy should, however, ensure it understands the potential legal ramifications for its business before doing so.
Fuel prices and severe weather are the most often cited reasons for permitting telecommuting in the US. However, employers also view it increasingly as a way to save time and money and to improve the morale of their workforce. Employers who permit telecommuting report less sickness and other personal leave taken by their employees, lower turnover (which saves hiring and recruiting costs), reduced office and parking space needs and increased productivity.
Telecommuting can, however, also raise a number of legal questions in relation to the Americans with Disabilities Act (“ADA”), workers’ compensation programs and workplace safety, among others.
Under the ADA, employers must offer reasonable accommodations or adjustments for employees with qualifying disabilities. By implementing a telecommuting policy, an employer could be opening the door for a court to find that the practice is a reasonable accommodation for employees under the ADA. If an employee argues that telecommuting is a reasonable accommodation, the employer would have to either permit the employee to work from home or prove that his physical presence at the work site is an essential component of his job. The latter may be more difficult to show if other similar employees have been permitted to work from home.
Telecommuting also creates concerns for employers regarding workers’ compensation coverage. Generally, workers’ compensation covers injuries arising out of the employment. Although this standard is not always easy to define, the lines can become even more blurred for the telecommuter, as workers’ compensation law does not typically distinguish between on-site and off-site employees. As telecommuters may not have standard working hours the question of whether an injury at home is covered can be a tricky one. An injury incurred while stepping out of the shower, or going up and down the stairs may well be deemed to have arisen out of the employment, depending on the circumstances. In one US State it was held that a telecommuter who injured himself while salting his driveway against the snow was entitled to compensation.
What about accidents that occur while a telecommuter is travelling between his home and the employer’s place of business? Typically, an employee is not covered for an injury that occurs during a commute to or from work. However, accidents that occur after an employee’s work day has begun are often compensable under workers’ compensation law. Generally, this includes travel between work sites so telecommuters who are injured travelling to their employer’s office may well be entitled to compensation.
Yet another issue for employers of telecommuters to consider is the Occupational Safety and Health Act 1970. This Act generally requires US employers to provide a workplace free from hazards that are likely to cause serious injuries or harm. The Occupational Safety and Health Administration (“OSHA”), the body responsible for enforcing the Act, considers that the Act covers home-based employees as well as other off-site employees. OSHA has indicated that it will not conduct routine investigations of home-based work sites, but it will respond to complaints and will fine employers that maintain unsafe home-based work sites. For example, if a home office is maintained in a basement and the stairway leading to the basement is unsafe, OSHA has indicated that this would constitute a potential breach of the Act.
These concerns are certainly not exhaustive, but they do highlight the need for employers to have a well thought out and detailed telecommunications policy in place before implementing a telecommuting scheme, thus ensuring the benefits of telecommuting outweigh the risks.