A growing trend among employers today includes requests for non-traditional work arrangements. One of those being “telecommuting”, where employees are permitted to work from remote sites, including home; using mobile telecommunications technology. In fact, studies show that as many as 30 million Americans work from home at least one day per week. Gas prices and severe weather are the most often cited reasons for permitting telecommuting. Other benefits include saving time, money and improving workforce morale. Employers who permit telecommuting report less sick and personal leave taken by their employees, lower turnover (which saves hiring and recruiting costs), reduced office and parking space needs and increased productivity.
Nonetheless, the benefits that telecommuting offers to employers do not come without concerns. Among these concerns are legal issues that are created by telecommuting such as questions regarding the Americans with Disabilities Act (“ADA”), workers’ compensation programs, and workplace safety, among others.
Under the ADA, employers are required to offer reasonable accommodations to employees with qualifying disabilities. By implementing a telecommuting policy, an employer is likely opening the door for a court to find that telecommuting is a reasonable accommodation for employees under the ADA.
Additionally, telecommuting creates concerns for employers regarding workers’ compensation coverage. Generally, workers’ compensation covers injuries that arise out of one’s employment. Workers’ compensation law does not typically distinguish between on-site and off-site employees. The question of whether or not an injury that occurs at home is covered under workers’ compensation can be difficult from an employer’s perspective. An injury incurred while stepping out of the shower, or going up and down stairs may very well be deemed to have arisen out of employment depending on the circumstances. In fact, one state found a telecommuter injury that occurred while salting his driveway to be compensable.
Telecommuting also raises questions regarding accidents that occur while a telecommuter is traveling between the off-site location and the employer’s place of business. Typically, an employee is not covered for an injury that occurs during a commute to the worksite. However, accidents that occur after an employee’s work day has begun are often compensable under workers’ compensation law. Generally, this includes travel between worksites so telecommuters who are injured traveling to an employer’s office may well have a compensable injury.
Yet another issue for employers of telecommuters to consider is the Occupational Safety and Health Act of 1970. The Act generally requires employers to provide a workplace free from hazards that are likely to cause serious injuries or harm. OSHA has indicated that it will not conduct routine investigations of home-based work sites and employers will not be held responsible for home-based offices. Nonetheless, OSHA has advised that employers can be responsible for hazards in a home-based office that the employer knows or should know exist. Specifically, employers can be liable for hazards caused by materials, equipment or work processes that the employer requires to be used in a home-based office.
These concerns are certainly not exhaustive as there are numerous other employment issues related to telecommuting, but they highlight the importance in having a well thought out and detailed telecommuting policy. Employers are best advised to consider each position and analyze the risks and benefits when implementing or revising a telecommuting policy. Understanding the potential legal ramifications before implementing a telecommuting policy can prevent future headaches for employers.
