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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 homes 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.
What Is a Reasonable Accommodation under 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.1
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.2 In recent years, plaintiffs have argued that telecommuting is a reasonable accommodation within the meaning of the ADA.
Assess Whether Telecommuting Is a Reasonable Accommodation
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)10 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.11
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.12 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.
Mitigate Risk of Off-the-Clock and Overtime Claims
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)13 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 employers 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.14
Consider Immigration Violation Risks When Hiring Teleworkers without First Meeting
Although an employer could feasibly hire a teleworker without first meeting him or her 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),16 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:
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.18 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.19
Promote Safe Working Conditions for Teleworkers
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.
Draft a Telecommuting Policy
A model telecommuting policy should:
Create a Model Telecommuting Arrangement
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:
Jeffrey H. Ruzal is a member of Epstein Becker Green’s Employment, Labor & Workforce Management practice. He leads the firm’s hospitality service team and represents clients in such diverse industries as hospitality, financial services, retail, health care, and technology. Mr. Ruzal advises employers in all aspects of the employment relationship, from pre-employment and hiring to terminations and post-employment restrictions; provides regulatory advice and conducts labor and employment due diligence in connection with significant M&A deals; conducts audits of employers’ policies and procedures to determine compliance with applicable federal, state, and local laws; and counsels employers with respect to federal and state wage and hour compliance, including exempt employee and independent contractor classification audits, compensation reviews, and non-exempt recordkeeping practices. Carly Baratt is an associate in the Employment, Labor & Workforce Management and Litigation & Business Disputes practices, in the New York office of Epstein Becker Green. She represents clients in employment-related litigation on a broad array of matters, including claims of discrimination, harassment, retaliation, wrongful termination, and breach of employment contract.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Labor and Employment > Employment Policies > Terms of Employment > Checklist
For an overview of practical guidance on the novel coronavirus (COVID-19) covered in many practice area offerings in Lexis Practice Advisor, including Labor & Employment, see
> CORONAVIRUS (COVID-19) RESOURCE KIT
RESEARCH PATH: Labor & Employment > Workplace Safety and Health > Occupational Safety and Health Act > Practice Notes
For advice on dealing with corornavirus in the workplace, see
> 9 CORONAVIRUS SCENARIOS THAT COULD TRIP UP EMPLOYERS
RESEARCH PATH: Labor & Employment > Trends & Insights > Articles
For an overview of OSHA, see
> OSH ACT REQUIREMENTS, INSPECTIONS, CITATIONS, AND DEFENSES
For practical guidance on reasonable accommodation under the ADA, see
> AMERICANS WITH DISABILITIES ACT: GUIDANCE FOR EMPLOYERS
RESEARCH PATH: Labor & Employment > Discrimination, Harassment, and Retaliation > EEO Laws and Protections > Practice Notes
For federal workplace notice and posting requirements, see
> WORKPLACE NOTICE AND POSTING REQUIREMENTS CHART (FEDERAL)
RESEARCH PATH: Labor & Employment > Screening and Hiring > Hiring and Onboarding > Practice Notes
For more information on state laws prohibiting disability discrimination and/or requiring reasonable accommodations, see
> DISCRIMINATION, HARASSMENT, AND RETALIATION STATE PRACTICE NOTES CHART
RESEARCH PATH: Labor & Employment > State Law Surveys and Content Guides > State Law Content Guides > Practice Notes
For more information on state wage and hour laws, see
> WAGE AND HOURS STATE PRACTICE NOTES CHART
RESEARCH PATH: Labor & Employment > Wage and Hour > Statutory Requirements and Exemptions > Practice Notes
For practical guidance on Form I-9 compliance, see
> I-9 POLICIES AND BEST PRACTICES FOR I-9 COMPLIANCE
RESEARCH PATH: Labor & Employment > Screening and Hiring > Hiring and Onboarding > Practice Note
1. 42 U.S.C.S. § 12112(b)(5)(A). 2. 29 C.F.R. § 1630.2(o). 3. See Work at Home/Telework as a Reasonable Accommodation. 4. See Morris-Huse v. Geico, 2018 U.S. Dist. LEXIS 14284, at *25 (M.D. Fla. Jan. 30, 2018) (“No bright-line test has been established for determining whether physical presence is an essential function of a job, or whether telecommuting is a reasonable accommodation.”); Solomon v. Vilsack, 763 F.3d 1, 10 (D.C. Cir. 2014) (“Determining whether a particular type of accommodation is reasonable is commonly a contextual and fact-specific inquiry.”). 5. See Hall v. Verizon N.Y., 2017 U.S. Dist. LEXIS 122729, at *12–13 (S.D.N.Y. July 26, 2017) (finding physical presence of employee was essential function of job where employee conceded that she attended regular, in-person client meetings). 6. See, e.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1238–39 (9th Cir. 2012) (neonatal nurse who provided direct patient care); E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir. 2001) (forklift operator); Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998) (loan review analyst who used confidential documents that could not leave the office); Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (teacher). 7. See, e.g., 29 C.F.R. § 1630.2(n)(3)(vi) (“Evidence of whether a particular function is essential includes . . . [t]he work experience of past incumbents in the job . . .”); EEOC v. Ford Motor Co., 782 F.3d 753, 774 (6th Cir. 2015) (“[T]he telecommuting arrangements of other resale buyers undercut Ford’s claim that, at any given moment, resale buyers must engage in spur of the moment, face-to-face troubleshooting in order to perform their jobs effectively.”). 8. Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 605 (6th Cir. 2018). 9. 29 C.F.R. § 1630.2(n)(3)(ii) (“Evidence of whether a particular function is essential includes . . . [w]ritten job descriptions[.]”). 10. 29 U.S.C.S. § 201 et seq. 11. See U.S. Department of Labor Wage and Hour Division Fact Sheet #22 (July 2008). 12. 29 C.F.R. § 785.11. 13. 8 U.S.C.S. § 1101 et seq. 14. See U.S. Citizenship and Immigration Services (USCIS) M-274 I-9 Handbook at § 4.0 for details. 15. See U.S. Citizenship and Immigration Services (USCIS) M-274 I-9 Handbook at § 4.0. 16. 29 U.S.C.S. § 651 et seq. 17. See OSHA Instruction, Directive Number CPL 2-0.125, “Home-Based Worksites” (Feb. 25, 2000). 18. Id. 19. Id. 20. U.S. Department of Labor, OSHA Standard Interpretations, “Determining work-relatedness for injuries in the home when telecommuting” (Mar. 30, 2009). 21. See U.S. Department of Labor, OSHA Instruction, “HomeBased Worksites,” Directive No. CPL 2-0.125 (February 25, 2000). (“Employers are responsible in home worksites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee’s home.”). 22. 15 U.S.C.S. § 7001 et seq., 23. See, e.g., Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal. App. 4th 836, 843–44 (2014) (where plaintiff testified that he could not recall e-signing the agreement in question, the fact that the agreement purportedly bore his electronic signature and a date and time stamp did not establish that the signature was in fact his).