Given the ease with which telework/telecommuting (employee working remotely) is possible and the myriad of reasons why employees desire to telecommute, it is not surprising that telecommuting is becoming more common. Obviously, telecommuting is not appropriate for all positions, or even for all employees within the same position. Beyond deciding when telecommuting will and will not be effective, there are a number of important issues an employer must consider before agreeing to allow an employee to work off-site.
Because of the difficulty in tracking time worked off-site by an employee, the initial consideration for an employer is whether it will limit telecommuting to exempt employees. However an employer resolves this issue, it should conduct an audit of the duties performed by employees it designates as exempt and who are approved to work remotely. An incorrect classification could be extremely costly if the employee is entitled to overtime for all hours worked in excess of 40 in a work week. Each non-exempt employee approved for telecommuting should be required to acknowledge in writing that he/she is (1) to report all hours worked, (2) to not work more than 40 hours in a work week (or in excess of the daily maximum in those states that require overtime pay in excess of 8 hours in a day) without written authorization, (3) to clock in and out via e-mail or telephone, (4) to report hours worked on a daily basis, and (5) subject to termination for failure to truthfully report hours worked.
An OSHA directive issued in February 2000, limits employer liability for safety in an employee’s home office (OSHA Directive No. CPL-2-0.125). The directive applies to “home officers” (defined as “office work activities in a home-based work site”). According to the directive, the agency “will not conduct inspections of the employee’s home offices” and “does not expect employers to inspect home offices of the employees.” Employers, however, still must keep records of all work-related injuries, no matter where they occur (29 CFR Part 1904.5(b)(7)).
- Workers’ Compensation
The fact that an employee works at home or at a remote location 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 and follow any guidelines established by the carrier.
Employees must be advised to follow procedures for promptly reporting any work-related injury, no matter where it occurs. Further, as part of the agreement to allow an employee to telework, the employee should acknowledge that the employer has the right to access the telecommuter’s home to investigate an injury that occurs while the employee is working at home. If employees work at home in states other than the company’s place of business, the employer should determine whether those states’ workers’ compensation rules require insurance coverage to be obtained on a state by state basis.
- Information Security
Employers must pay particular attention to protecting the confidentiality of proprietary and other sensitive information with respect to employees who will be accessing such information remotely. An employer’s security measures must cover company-owned and employee-owned computers, laptops and mobile devices. The employer’s policies should specify what, if any, company data may be moved to an employee’s personally owned computer or mobile device and how employees must protect confidential business information when they remotely access that information. To remove any legal expectation of privacy by telecommuting employees, employers should obtain a signed acknowledgement from the employee that he/she understands that certain aspects of their employment will be monitored without notice, including computer files, documents prepared or used by the employee in the scope of their employment, and computers and telephone lines used during work hours.
Data security is especially critical if the telecommuter works with health information that is covered by the electronic security rule of the Health Insurance Portability and Accountability Act (HIPAA).
- Liability Insurance
Employers should either prohibit employees from meeting with third parties at their residence, or extend the scope of their liability insurance (if possible) to cover the employee’s home whenever it is being used for the employer’s business. Employers should also consider requiring the employee to agree to maintain homeowner’s or renter’s liability insurance that would cover work related accidents.
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 arrangement.
- Legal Considerations
Generally, an employer has the right to merely say no to an employee who requests to work off-site. There are, however, certain limits on an employer’s discretion. First and foremost, under some circumstances, telecommuting would be considered a reasonable accommodation under the ADA, whether for a specific period of time or on a more permanent basis. If a disabled employee asks to work from home as an accommodation, an employer should follow its regular process to evaluate whether or not the accommodation would pose an undue hardship.
Second, employers must ensure that its decisions are based on legitimate reasons and not on an employee’s status in a protected classification. For example, all things being relatively the same, it would be discriminatory for an employer to allow only employees of one gender to work remotely, or to not allow any employee above a certain age (above 40) to work at home. Distinguishing factors that would make situations different, in addition to the obvious one of job duties, are: job performance, disciplinary record, and length of employment. An employer would have a legitimate basis for declining a request to work off-site from a marginal employee, one with a record of policy violations or a relatively new employee.