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by Jeffrey H. Ruzal and Carly Baratt, Epstein Becker & Green, P.C.
With the advent of sophisticated workplace information technology that allows employees to connect to a company's computer network from their home with little more than a laptop and an internet hookup, “telecommuting” or “teleworking” has become a common phenomenon across various industries. Moreover, telecommuting and work-from-home arrangements are increasing exponentially during the novel coronavirus (COVID-19) pandemic as a way of protecting employees and customers from exposure. This checklist provides practical guidance on navigating the various legal and practical issues facing employers with respect to telecommuting, from responding to one-off employee requests to telework to deploying a formal telecommuting policy to devising a way to effectively train and monitor remote employees.
Carefully consider whether the employer is required to offer a telecommuting arrangement as a reasonable accommodation in accordance with the ADA.
The ADA prohibits discrimination against individuals with disabilities and guarantees that such individuals have the same opportunities as the rest of the general public. Title I of the ADA requires an employer to provide “reasonable accommodation” to qualified individuals with disabilities and creates a cause of action for failure to accommodate.
In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. In recent years, plaintiffs have argued that telecommuting is a reasonable accommodation within the meaning of the ADA.
When assessing whether telecommuting is a reasonable accommodation, consider the following:
Before deciding, employers should assess the following factors:
Remember, even if the employer concludes that some job duties must be performed on-site, the employer must still consider whether the employee can work part-time at home and part-time in the workplace.
At its core, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., requires employers to pay nonexempt employees (1) at least minimum wage for all work performed and (2) at least one-half times an employee's regular rate of pay for hours worked over 40 in a week (i.e., “overtime hours”). Complicating matters, the FLSA requires an employer to compensate an employee not only for work that the employee has expressly directed, but also for work not requested but “suffered or permitted” to be performed. See U.S. Department of Labor Wage and Hour Division Fact Sheet #22 (July 2008).
This includes situations where an employee works overtime without permission but the employer “knows or has reason to believe” the employee is continuing to work. 29 C.F.R. § 785.11.
Telecommuting is often viewed as problematic because it can be difficult for an employer to monitor telecommuters' hours when they are working off-site. But, FLSA compliance and telecommuting arrangements are not mutually exclusive.
To mitigate the risk of teleworker off-the-clock and overtime claims, employers should consider taking the following steps:
Congress enacted Immigration Reform and Control Act (IRCA), 8 U.S.C. § 1101 et seq., in 1986 to prevent unauthorized employment of foreign workers by requiring U.S. employers to verify their U.S. workforce. Specifically, IRCA requires employers to complete the Form I-9 verification process for all new hires to confirm their valid U.S. work authorization as citizens, U.S. permanent residents, asylees, or work-authorized foreign nationals. This process involves new hires presenting their employer with specific types of required original documentation evidencing their U.S. legal work authorization and identity and completing their section of the Form I-9 on or before their first day of hire. The employer must thereafter complete the verification section of the Form I-9 within three business days of the employment start date to confirm the validity of the documents presented. See U.S. Citizenship and Immigration Services (USCIS) M-274 I-9 Handbook at § 4.0 for details.
Although an employer could feasibly hire a teleworker without first meeting them in person by having an off-site authorized representative complete the verification of original documents presented by the employer for completing the Form I-9 verification process, keep in mind that there are certain risks inherent in this approach, including:
The Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq., which was passed to assure U.S. employees safe and healthful working conditions, applies to every private employer who has any employees doing work in a workplace in the United States. Covered employers must provide a workplace free from recognized, serious hazards, record work-related injuries and illnesses, and comply with OSHA standards and regulations.
While home offices are workplaces covered by OSHA, the U.S. Department of Labor has advised that it:
See OSHA Instruction, Directive Number CPL 2-0.125, “Home-Based Worksites” (Feb. 25, 2000).
If OSHA receives a complaint about a home office, it will inform the employee of OSHA's policy and, only upon request, will informally apprise an employer of a complaint regarding the conditions of a home office. Id. The only exception to this “hands-off” policy is for home-based worksites where more than standard clerical office work is performed, such as home manufacturing operations. Id.
Although OSHA does not require employers to ensure that their teleworkers' home offices are safe and healthful, there are benefits to promoting safe working conditions for teleworkers, including:
For these reasons, consider issuing employees safety checklists and/or tips that address the following topics:
If an employer decides to offer telecommuting arrangements, it should prepare and disseminate a telecommuting policy and/or guidelines to ensure consistency amongst employees who participate in such arrangements. Every employee authorized to participate in a telecommuting arrangement should also sign a telecommuting agreement.
A model telecommuting policy should:
A model telecommuting arrangement should identify the following information:
The telecommuting arrangement should include a certification that the telecommuter has reviewed, understands, and agrees to follow the telecommuting guidelines, as well as all company policies and procedures, including, but not limited to the following:
Various federal and state labor laws require employers to post posters notices and advising workers of particular laws and regulations in the workplace, in conspicuous locations where they are easily visible to all employees. These requirements extend to remote workers too.
To ensure teleworkers view these posters, employers should:
Maintaining physical paper copies of posters at the office is likely only sufficient if the teleworker visits the office frequently.
Employers with remote workers need to be mindful of data security, which can be compromised by risky behavior by remote workers, including their failure to follow company procedures.
To mitigate security risk, employers should consider memorializing the following instructions and requirements as part, or an addendum to, its telecommuting policy:
Employers often express concern over how to manage, train, and supervise telecommuters. However, modern technology can often allay these concerns.
Employers can use technology to stay in close contact with their teleworkers by:
To ensure teleworkers meet performance expectations, employers should adopt the following measures:
Because teleworkers by definition do not regularly report to a physical office, it can be difficult for employers to ensure that they complete and return—in a timely manner—physical agreements and other documents that require traditional physical or “wet” signatures, particularly if the teleworker does not have access to a scanner or fax. Allowing teleworkers to sign and transmit such documents electronically can prove much more convenient and potentially more secure.
Before an employer decides to allow certain documents to be e-signed, it should consider the following key factors:
To ensure that telecommuting aids employers and their teleworker(s), employers should adopt the following additional best practices: