I. INTRODUCTION
An ever-growing number of employees are working either at home or from a non-traditional work-site. The concept of the remote office involves a workplace outside of the traditional office and the concept of telecommuting involves the use of computer or other telecommunication technology by an employee, thus enabling the worker to use an alternative workplace outside of the traditional office setting. The concepts may range from working at home on an occasional basis to working at home or in an alternative office pursuant to a more formalized arrangement several days a month.
An employer that is considering a remote office or telecommuting arrangement will certainly address management and supervisory concerns as well as the potential benefits to employees. In addition, an employer will want to address the legal issues involved with such arrangements. Finally, prior to implementing any arrangement, an employer will want to have a written program or policy and agreement in place that covers both management and legal issues.
The purpose of this article is to call attention to those legal issues that may affect the use of remote office and telecommuting arrangements.
II. OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)
Employers are required by OSHA to: comply with all OSHA standards; ensure a safe and healthy workplace for employees that is free from hazards; open workplaces for OSHA inspections; maintain records of workplace injuries and illnesses; and report serious accidents and workplace deaths. Does an employer’s OSHA responsibilities apply even if the workplace is the employee’s home? There is currently not a clear-cut answer to this question. Although OSHA “exempted” home offices from workplace safety inspections on February 25, 2000, when it sent an electronic directive to its offices stating that “OSHA does not expect employers to inspect home offices of employees,” the agency did allow for “when asked” follow-ups stemming from complaints involving work at home. Employers should still consider taking any “reasonable” steps to prevent foreseeable hazards in the workplace and the same should be done prior to permitting an employee to use a remote office or home for work activities. This would entail an initial home inspection and evaluation, followed by periodic safety inspections.
III. FAIR LABOR STANDARDS ACT (FLSA) – WAGE AND HOUR LAWS
Both federal and state wage and hour laws apply to remote office workers and telecommuters. Difficulties arise when the employer’s ability to enforce working hours and work activities is lessened due to the lack of monitoring and on-site verification. Nonetheless, employers must continue to comply with minimum wage, overtime and record keeping requirements for nonexempt employees. Time sheets or other documentation are required to be maintained on a weekly basis for documenting hours worked and showing if overtime pay is due. If a nonexempt employee’s work meets the FLSA’s definition of “homework” (the production of goods “in or about a home, apartment, tenement, or room in a residential establishment”), the employ must comply with added record keeping requirements.
An additional issue is whether a remote worker or telecommuter is engaged in on-call work. Under current federal regulations, “on-call” time is not considered as hours worked unless an employee is required to wait for a call to work at either the employer’s workplace or a location other than the employee’s home. Since a remote worker of telecommuter’s home may be construed as a secondary work-site of the employer, the question arises whether the employee’s time is “on-call” time and therefore compensable. The traditional test includes the following factors: the employee’s freedom of movement; the frequency of calls to return to work; response time requirements; and equipment transportation. This test should be utilized in determining whether the employee’s on-call time is compensable or not.
IV. WORKERS’ COMPENSATION
When employees are injured arising out of or during the course of their employment, they are entitled to coverage under the Workers’ Compensation Act. When the home becomes a secondary work-site (i.e., the employer requires work to be performed in the home), an injury or accident arising out of and in the course of work will also be compensable. The tests used generally to determine whether work at home makes the home a secondary work place are: (1) regularity of work performed at home; (2) if work at home is more than a “convenience” for an employer; and (3) if there is business equipment in the home. Greater weight is placed on the first two elements in making such a determination.
An employer should verify that workers’ compensation coverage would cover remote work-sites, such as an employee’s home. If the home is the work-site, then an employer should take additional steps to minimize the risk of work place injuries and accidents. Periodic safety inspections and compliance with the safety committee requirements under the Nebraska Workers’ Compensation Act will be necessary. An employer should also establish policies and procedures that establish: (1) specific work schedules (whereby an employer assumes no liability for injuries or accidents occurring outside of work hours); (2) permission for employer inspections of the home work place; (3) employee’s duty to maintain a safe work place; (4) a safe work place using employer provided equipment (e.g., desk, chair, computer equipment that is ergonomically correct); and (5) duty of employee to immediately and accurately report any injuries or accidents.
V. AMERICANS WITH DISABILITIES ACT (ADA)
Although the ADA does not specifically mention remote offices or telecommuting as a “reasonable accommodation” under Title I – Employment provisions, as these concepts become more common, it is likely that the enforcement agencies and the courts will consider them acceptable as reasonable accommodation. In fact, if remote offices or telecommuting is being offered as an option to employees, ADA covered employers may be required to provide the option to a qualified individual with a disability as a reasonable accommodation (unless the employer could demonstrate an undue hardship). The qualified individual would need not specifically request the use of a remote office or a telecommuting arrangement; rather, the employer would have the duty to explore the option as an accommodation and decide if it is reasonable. An employer that allows work to be performed outside of the usual office or workplace setting should establish policies or guidelines that set forth clearly all criteria used to evaluate what positions are eligible for remote office or telecommuting work. In this way, an employer is able to distinguish what work is suitable outside the traditional work place and what work is required to be performed at the work place.
Title III – Public Accommodations issues may also arise under certain circumstances. If an employer’s customers or vendors will access the remote or home office, then the office will be considered a public accommodation or a commercial facility. The employer would have an obligation to accommodate access, including the possible removal of any access barriers if readily achievable, or otherwise make the office accessible if the structure is newly renovated or constructed.
VI. MISCELLANEOUS ISSUES
A. State Work Place Posting
The Nebraska Department of Labor and the Nebraska Equal Opportunity Commission both require the posting of employee notices in the work place. There is no exact guidance as to whether a telecommuter is required to display such posters in a home work-site.
B. Family and Medical Leave Act
For employers subject to the Act, issues include whether employees living and working more than the 75-mile radius of the main work-site are covered by the Act, posting requirements under the Act (whether they apply to the remote or home office) and the timing of notice requirements.
C. Liability Insurance
Outside of workers’ compensation insurance, employers should consider liability insurance for theft or damage to equipment and third party injuries related to work.
D. Zoning
Employers should ascertain if there are any local zoning restrictions regarding the use of a home for business purposes or regarding the type of work to be performed in the home.
E. Expenses
The parties to a remote office or telecommuting arrangement should understand what parties are responsible for expenses, including general liability insurance, rent and utilities of the work-site, ownership, repair and maintenance of equipment used in the performance of the work and tax consequences for the employer and employee.
VII. CONCLUSION
Remote office and telecommuting arrangements are becoming more common, allowing the flexibility or accommodation to meet valuable employee needs while, under certain circumstances, reducing costs for employers. The risks include management, supervisory and legal issues. These risks can be addressed through carefully drafted policies, procedures and guidelines so that all parties to an arrangement will know what is expected and who is responsible.