Wednesday Feb 01, 2023

Telecommuting – The Reality Of Employee Expectations – Employee Benefits & Compensation – United States – Mondaq


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Telecommuting is not a new phenomenon. Whether on a full-time,
part-time or sporadic basis, telecommuting has been voluntarily
offered by employers, and in some cases, required as an
accommodation for an employee with a disability for many years. And
of course, for many employers telecommuting became a necessity
during the pandemic. As employers are returning to more traditional
work arrangements, however, many are faced with employees who wish
to continue working from home. The push to normalize remote work is
not, however, limited to employees. Many employers are taking the
initiative to make this option more permanent as well in an effort
to attract and retain talent.

Whether the impetus is employee or employer driven (or both)
employers should review their policies and practices to avoid risks
associated with telecommuting. Remote work, like other flexible
work options, should be governed by a formal policy that addresses
legal issues that can arise with a remote workforce including the

  1. Compensation/Hours Worked. Hourly employees,
    both those who telecommute and those who don’t, are entitled to
    overtime compensation for all hours worked in excess of 40 hours in
    a work week. One of the attractions of remote work—the
    flexibility it provides to employees—creates a work-schedule
    challenge for employers. Employers who allow telecommuting should
    establish a mechanism to track hours worked and create clear
    guidelines for employees to follow regarding adhering to work
    schedules, working overtime, etc.
  2. ADA Accommodations. For employees who are
    expected to work onsite, an employer may have to allow working from
    home as an accommodation under the Americans with Disabilities Act
    (ADA), unless doing so would impose an undue hardship on business
    operations. The potential health risks to working onsite for
    employees with certain underlying health conditions has added new
    elements to the “disability” analysis.
  3. Criteria for Selection. Inevitably there will
    be situations in which an employer will not agree to an
    employee’s request to work from home. A policy that establishes
    criteria used in determining who will be allowed to telecommute is
    essential to defend against a claim that the policy is applied in a
    discriminatory manner (e.g., favoring younger over older employees,
    favoring one gender over another, denying requests from minority
    employees, etc.).
  4. Data Security and Confidentiality. Whether an
    employee is using his/her or company equipment, steps must be taken
    and guidelines established to guard against data breaches and to
    protect confidential information, including guidelines regarding
    the secure destruction of hard copies of documents that may be
    printed at home.
  5. Tax Considerations. 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 an arrangement.
  6. Work-Related Injuries and Safety. The fact
    that an employee works from home 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.
    Employers should also establish reporting procedures and workplace
    guidelines to minimize the chance of work-related injuries,
    incorporating any guidelines established by the carrier.
  7. Preventing Virtual/Remote Harassment. Although
    harassment …….


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