Hasner Law | Workers' Compensation | August 28, 2020
Roughly 80 percent of employees would prefer to work from home at least part-time. Over one-half of employees have a job that they can perform remotely.
On average, about one-third of employees would be willing to change jobs if it meant they could telecommute. More than one-third of workers would accept up to a five percent pay cut if they could work from home part-time. If they could work from home full-time, about a quarter of employees would take up to a ten percent pay cut.
The COVID-19 pandemic forced many employees to work from home. Employers discovered that they could operate as efficiently with employees telecommuting. In some cases, cutting overhead costs made telecommuting an attractive long-term option for their companies.
Employers who now have remote workers need to develop a work from home policy or remote work policy. These policies protect them from liability related to telecommuting. Employees should also take steps to ensure they are protected from liability.
Below are several issues related to telecommuting that employers and employees need to consider.
A telecommuting policy needs to address several issues related to working from home. The policy should address the requirements, duties, expectations, and responsibilities of telework employees. It should also address working from home employer obligations.
As with all employee policies, a telecommuting policy should be in writing and signed by the employee. It needs to be specific and address issues such as:
- Work hours
- Communication methods
- Policy abuse
- Workers’ compensation
Other issues may also need to be addressed depending on the type of business and the company. Legal guidance creating a telecommuting policy can help avoid legal disputes.
Work From Home Requirements
When employers and employees discuss a remote work policy, several issues are important to address. Parties can create an effective workflow that manages the expectations of both parties by addressing these issues before transitioning to telecommuting.
Five crucial work from home requirements to address are:
The procedures for requesting to work from home need to be clear to avoid allegations of discrimination. The procedure may include a discussion with a supervisor, followed by a written request to establish a remote work agreement. Employees who wish to work from home may be required to complete training for remote workers.
The procedures should also include guidelines for approving a work from home agreement, such as a trial period. The policy should also include how the arrangement can terminate.
Not all positions within the company may be suitable for a work from home arrangement. Define which positions are eligible for telecommuting.
The company may also want to include other requirements for working from home, such as:
- Minimum number of years with the company
- Satisfactory performance record
- Organizational and time-management skills
- Ability to use technology effectively
Individual skills are as important as job requirements to be successful as a telecommuter.
Equipment and Technology
Typically, employers are responsible for providing the tools necessary for an employee to perform his or her job. When the employee works from home, that may change. An employee may need to provide data lines and office equipment to work from home.
An employer needs to be very clear in the telecommute agreement that each party is required to provide. However, employers may want to consider providing the computers and software for a telecommuter.
By providing the equipment, the employer maintains control. The employer has the right to inspect the equipment and restrict the use of the equipment to work-related tasks only.
Effective communication is essential for employees who work from home. The employer may want to require daily or weekly teleconferences. All communications need to remain formal. That includes communications with co-workers, vendors, clients, customers, and other parties.
After a trial period, the parties may re-evaluate communication to develop a level that is consistent with the needs of both parties.
Protecting confidential information must be a high priority when developing a remote work policy.
Employees who work from home must comply with all company policies regarding data protection and cybersecurity. That includes password maintenance and software updates. They must also follow all security protocols in protecting equipment and data in their home.
Employers may require telecommuters to have certain items to help maintain security. Items might include a locked file cabinet, paper shredder, and adequate home security to ensure that data is protected.
An employer may want to include a home office inspection as part of the eligibility requirements for working from home. Regular follow-up inspections may also be part of the agreement.
Working From Home Legal Requirements
In addition to setting requirements within the company for telecommuting, there are also working from home legal requirements that employers must consider. Working from home laws that employers should consider include:
Time Worked and the Fair Labor Standards Act
Even though the employee is working from home, the employer must abide by the Fair Labor Standards Act and state laws regarding work hours. Workers that are salaried and exempt from overtime are not as much of a concern as employees paid by the hour.
For hourly employees, the employer needs a reliable method for determining the number of hours worked from home. Even though an employer tells an employee not to exceed 40 hours, the employee is still entitled to overtime if the employee works more than 40 hours.
Employers can invest in software that tracks when an employee is logged into the computer to work. Another option is to set specific hours for work. After those hours, employees should not check emails, log into work computers, or take telephone calls.
Work From Home Insurance
Employers need to ensure that their employees’ homes are safe to conduct business, especially if an employee meets with clients or customers at home. Even though an employee works from home, an injury could result in workers’ compensation liabilities for the employer.
Workers’ compensation for teleworkers can be difficult. Determining whether an injury was work-related when no one but the employee can verify how the injury occurred is challenging. If an employee’s injury is work-related, the employer could be responsible for medical care and disability benefits.
However, the employer is not responsible for compensation for pain and suffering damages if workers’ compensation covers the injury.
An employer could be liable if a customer is injured on the property. Companies have liability for negligent security, broken steps, hazardous wiring, and other dangerous property conditions. The employer’s liability could extend to an employee’s residence if a client or customer is injured.
Therefore, the employer and the employee should review all insurance coverage that could relate to working from home.
Employers should review their workers’ compensation coverage, liability insurance, business property insurance, commercial auto insurance policies, and business income insurance to determine coverage and exclusions. Employees should review their homeowner’s insurance policy to determine if it excludes any accidents or damage that is work-related.
Work From Home Discrimination
Remote workers have the same rights under anti-discrimination laws as employees who work on-site. Telecommuters can be subjected to harassment and discrimination, but they can also be the perpetrator of the discrimination or harassment.
Employers can avoid problems by including telecommuters in training regarding workplace discrimination and harassment. Employees who work from home need to sign the same workplace policy regarding harassment and discrimination as all other employees. A clear policy for requesting accommodations and reporting harassment or discrimination for remote workers should be included in the telecommuting agreement.
Work From Home Can Benefit All Parties
Working from home can benefit employers and employees. However, to protect all parties, clear, detailed telecommuting agreements are required. Without a detailed agreement for working from home, employers and employees could be liable for a variety of ethical, legal, and security issues.
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