Telecommuting Legal Concerns

From: Staffing

Telecommuting Legal Concerns

Legal Concerns

A policy should contain guidelines to limit the organization’s legal risks and the employer should follow the guidelines if telecommuting is put into practice.

Occupational Safety and Health Administration

Employers are required by law to maintain a safe workplace for employees, even if it is at home. Based on recent policy announcements, the Occupational Safety and Health Administration (OSHA) generally will not inspect, nor require employers to inspect, the home worksites of employees engaged in telecommuting. However, if employees are engaged in manufacturing or other physical activities at home in the interest of their employers, which may pose safety or health hazards to them (for example, making lead molds), then OSHA may seek to inspect the work areas upon a complaint. In any event, employers subject to recordkeeping requirements must record the occupational injuries and illnesses of all home workers and may need to take feasible measures to comply with relevant OSHA standards at least to the extent that they do not involve controlling the worksite.

Workers’ Compensation

Another key legal consideration in telecommuting is workers’ compensation. An employee who is injured while working at home may be eligible for workers’ compensation, even though the employer has no effective control over the conditions of the employee’s home.

Worse yet, the employee may claim to have been injured while telecommuting, even though the injury occurred while out of the home or not when working. At the very least, this is an issue of fact for a workers’ compensation referee.

However, most telecommuting work is sedentary so it is unlikely that an employee will be injured while working at home or that an allegation that the employee was injured while doing so will be credible.

When an employee has been injured while telecommuting, it is unlikely that the injury will result in total disability. Most telecommuting intrinsically is light duty, at least in terms of the physical demands.

To minimize the workers’ compensation risks an employer should require that an employee notify a designated manager immediately if the employee is injured at home. While this will minimize the risk, it will not eliminate it. Again, it comes down to a matter of trust.

In addition, the employer may wish to inspect the employee’s home office to ensure that it is an ergonomically healthy environment and preclude the employee, at least on paper, from changing the environment without the employer’s permission. Of course, any visitor to the employee’s home must give due regard to the telecommuter’s privacy rights.

Finally, as part of the pretelecommuting arrangement, an employer should secure a release from the employee allowing the employer to come in and inspect the employee’s worksite immediately after any accident or injury. While such actions will not stop all fraudulent claims, they will help employers to better address such claims.

Fair Labor Standards Act

Telecommuting policies and procedures must remain within acceptable limits of federal and state wage-and-hour laws. The regulations do not contain any unique requirements or exceptions for telecommuters. Wage-and-hour requirements that apply to on-site employees also apply to off-site employees. If an employee is not exempt from the Fair Labor Standards Act (FLSA), the employer still has the obligation of maintaining time records for the employee, as minimum wage and overtime restrictions are still applicable. This may be done by having the employees fill out time sheets or log on and off a computer or telephone at the beginning and ending of their work hours. Employers concerned about potential exaggeration of time records should develop methods for verification.

When establishing a system for evaluating the productivity of exempt or salaried employees, employers must take care not to compromise the employees’ exempt status under the FLSA. The system should not undermine the fact that they are paid on a salary basis.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) requires employers to offer reasonable accommodation for qualified applicants and employees with disabilities. Reasonable accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job, or gain equal access to the benefits and privileges of a job. According to the Equal Employment Opportunity Commission (EEOC), allowing an individual with a disability to work at home may be a form of reasonable accommodation.

Although the ADA does not require an employer to offer a telework program, if an employer does offer telework it must allow employees with disabilities an equal opportunity to participate in the program. An employer may be required to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home. For example, an employer may generally require employees to work at least one year before they are eligible to participate in a telework program. If a new employee needs to work at home because of a disability, and the job can be performed at home, the employer may have to waive its one-year rule for this individual.

If an employer does not allow employees to telecommute, changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying the workplace policies. Alternatively, the employer may select any effective accommodation, even if it is not the one preferred by the employee.

Reasonable accommodations include adjustments or changes to the workplace for the ease of comfort of individuals with disabilities, such as the following:

  • Providing devices or modifying equipment.
  • Making workplaces accessible (installing a ramp).
  • Restructuring jobs.
  • Modifying work schedules and policies.
  • Providing qualified readers or sign language interpreters.

An employer may provide an alternative method of reasonable accommodations, or a combination of them, to permit an employee to remain in the workplace. For example, an employee with a disability who needs to use paratransit requests to work at home because the paratransit schedule does not permit employee to arrive before 10 a.m., two hours after the normal starting time. If this may be coordinated with the paratransit schedule, the employer may allow the employee to begin the work shift at 10 a.m., rather than granting the request to work at home.

The ADA recommends an employer determine an employee’s need to work at home through a flexible, interactive process between the employer and the employee. Initially, the employee must request to work at home by notifying employer that a medical condition interferes with employee’s ability to do the job. Then, the employer and the employee should conduct an open discussion detailing why the employee needs to work from home, the employee’s medical condition, available accommodations, and all reasonable options. The employer may request information about the employee’s medical condition (including reasonable documentation) if it is unclear whether the disability of the employee’s is within the parameters of the ADA. As the dialogue continues, the employer and the employee must determine whether a particular job may be performed at home. First, the employer and the employee should identify and review all of the essential job functions (that is, those tasks that are fundamental to performing a specific job). Second, the employer and the employee should determine the feasibility of working at home, including the employer’s ability to supervise the employee adequately and whether any duties require the use of certain equipment or tools or require face-to-face time that cannot be replicated at home. If the employer determines that some job duties must be performed in the workplace, the employer and the employee must consider whether working part time at home and part time in the workplace will meet their needs.

The frequency an employee with a disability may work at home is only to the extent that the disability of the employee necessitates the reasonable accommodation. As part of the interactive process, the employer should discuss with the employee the nature of the disability and reach an agreement meeting both of their needs. Not all persons with disabilities want to work at home and not all jobs can be performed at home. However, allowing an employee to work at home may be a reasonable accommodation if the disability of the employee prevents the employee from successfully performing the job on site.

Insurance and General Liability Issues

Before implementing a telecommuting policy, an employer must determine how to handle certain insurance issues. Work injuries and workers’ compensation have already been discussed. The employer and the telecommuter should consider other insurance and liability issues before telecommuting begins. For example, it needs to be determined who will be responsible for theft or damage to equipment. Will it be the employee’s obligation to provide insurance coverage for such incidents or will the organization provide the insurance coverage? Likewise, who shall provide insurance coverage if third parties are injured at the telecommuter’s home? It is unlikely that injuries to individuals at the telecommuter’s home for social or personal reasons will be the employer’s responsibility. However, injuries that are related to the telecommuter’s work or equipment may be found to be the employer’s responsibility.

Note: Preventive steps should be taken to lessen the chance of liability and insurance concerns. The employer and the employee should understand from the beginning where the liability for each begins and ends in the working relationship.


Local zoning codes may prohibit home-based work at the telecommuter’s home. Employers should ensure that zoning codes permit home-based work at the employee’s location before investing time and equipment in setting up the employee’s residence for work.

Telecommuting Written Agreement

To clarify expectations and obligations, employers and employees should enter into written agreements covering telecommuting arrangements.

Important subjects for an agreement would include the following:

  • The employee’s coverage for workers’ compensation while working at the alternative jobsite.
  • The employer’s (or employee’s) provision of necessary equipment.
  • The maintenance of the employee’s alternative workspace to the same standards as required for the on-site office. The employer may retain the right, subject to reasonable notice, to inspect the alternative worksite during scheduled work hours.
  • The employee’s responsibility to secure any equipment provided by the employer.
  • Responsibility for the cost of utilities.
  • Clarification of the employer’s policy regarding dependent care during work hours.
  • The employee’s ability, accessibility, and/or flexibility for and the location of meetings.
  • The employee’s duty to make reports to the employer’s office or to report in periodically.