Telecommuting: A New Normal?

Attorney Q&A with Elizabeth Bowersox

During the pandemic, many companies required employees to work from home while they were sheltering in place. Telecommuting is more popular than ever for both employers and employees alike. Now that businesses are opening back up again as restrictions are eased, does it make sense for employers to consider allowing some employees to continue working from home?

In this LINC Q&A video, McAfee & Taft employment lawyer Elizabeth Bowersox answers employer questions about telecommuting, including the business advantages, the legal risks and what issues employers need to consider when implementing a formal remote working policy.



Q: As businesses reopen with restrictions eased, does it make sense for employers to consider allowing some employees to continue working from home?

A: Yes, a lot of businesses are coming to understand that working from home is a good option for many employees. There’s lots of computer, telephone-based jobs that can be done from home. Employees might find that they’re actually more productive from home or it’s good for morale. So a lot of companies, I think, are starting to realize that telecommuting is a good option in the future, and in addition, it’s helpful with social distancing goals if you don’t have your whole workforce come back at once. You might have some employees telecommute two or three days a week and then come into the office the other days of the week, and that helps space out your workforce so everybody’s not in there at the same time. Additionally, there’s some employees who aren’t ready to come back to work because of COVID-19 reasons, whether that’s because they have childcare obligations or because they have an underlying condition and may feel safer at home for some time.

Q: What are the legal considerations to implementing a formal remote working policy?

A: First, you need to consider wage and hour issues. Obviously, if you have exempt employees, then you don’t have to track every single hour and that might lend itself to working from home better. But if you’re having nonexempt employees work from home, you still need to make sure you’re tracking all their hours of work. So you need to find some way that they can keep their time accurately, even though they’re not in the business, in the building, whether that’s a timekeeping app or having them self-report. It’s also important for businesses to make clear that working off the clock is strictly prohibited. Because you’re gonna be liable for any amount of time that they spend working, even if it’s from home, and even if it’s outside of their regular schedule. So I would say that the wage and hour laws are the first thing that you need to be concerned about and make some provision for in a work-from-home policy. Secondly, businesses need to think about information security and property issues. Are you going to give the employee a computer that they take with them? If so, how do you make clear that that still belongs to the company and make clear who is responsible for any theft or damage? Make some provisions for the employee to be able to get help or be able to repair the computer if something goes wrong. On the other hand, if the employee’s using their own device, how do you make sure that’s safe and secure from an information security standpoint? And usually, a bring-your-own-device policy is good in that instance, and then you can make clear that if the employee separates for any reason, you can get back any of your company’s data that’s left on that device, even though it belongs to the employee. Safety is another issue that employers need to be aware of when thinking about telecommuting. Right now, there are probably some employers who feel like they can ensure employees’ safety better when the employees are at home than in the workplace. They may look at all the requirements that a locality has to reopen right now and feel like it may just be easier to keep employees from home for the time being. No matter where employees are, employers have a general duty under OSHA to ensure that the employees aren’t at risk for grievous injury or death, something like that. But in the past, OSHA has really not required employers to go and inspect employees’ homes if they’re working from home to ensure that they’re safe, but that may be something some employers want to do. Additionally, if the employee has specialized equipment that they need to use to do their jobs, you have to make clear that if they’re taking that home, they have to keep following all the safety protocols that they would when they were at the workplace.

Q: Can employers be selective in deciding who is offered the option of working from home?

A: Yes, employers can be selective in deciding who can work from home and who can’t, but employers can’t be discriminatory when making that decision. So the difference is, is when you’re being selective, you’re looking at all the positions across the organization and you’re determining, okay, whose job duties can be done from home and whose can’t. And you might say, “Well, data entry, “all these people can do this job from home.” And when you’re being discriminatory, that’s when you’re doing something like saying, “Well, I don’t think men are really good caregivers anyway “and I don’t think that they multitask well, “so I’m gonna just say men can’t work from home “and women can.” Well, that would be an example of gender discrimination, and that would be illegal. It could open you up to lawsuits. And so, really you wanna be looking at the duties, not at the individual people. That being said, some people are better at working from home or working remotely than others. So nothing you decide has to be a permanent decision. If you say this job is qualifies for working from home, that doesn’t mean you’re saying every single person who has this job should work from home every day, even if it’s not working out. You can certainly still assess performance just as you would if people are in the office.

Q: For employees especially at risk for COVID-19, is allowing them to continue to work from home a reasonable accommodation?

A: In many cases, yes, it can be a reasonable accommodation under the Americans with Disabilities Act to allow employees to telecommute. When it comes to coronavirus and COVID-19 issues, there are some groups that are especially vulnerable to catching coronavirus or to having a severe case of it. And so those employees, if they say, “I would like to keep working from home for a certain amount of time until my doctor says I’m safe to come back to work,” in a lot of cases, that is a reasonable accommodation and something that you as a business would be required to provide. Now that’s usually not gonna be an open-ended accommodation. Usually, you’re gonna continue to reassess that as the pandemic goes on and that kind of thing.

Q: What are the next steps for employers interested in offering telecommuting as an option?

A: Just as we talked about a minute ago, I think a good first step is always to determine which positions can work from home and which can’t. Maybe all the positions in the organization can, maybe only a few can. So going through and making that determination is a good thing to do on the front end. And I think it’s really important that an employer put a formal telecommuting policy together, and that can be a great thing to talk to your employment lawyers at McAfee & Taft about, putting together a policy that covers all the legal risks and is also tailored to your organization.

Q: What should a telecommuting policy include?

A: Your typical telecommuting policy is going to include all of the things we discussed earlier. It’s going to touch on wage and hour issues. It’s going to allocate the rights and responsibilities of the employee who is working from home. You know, what property do they own? What property does the company own? Who’s responsible for theft or damage? That kind of thing. It’s gonna make clear that telecommuting is a right that the company can grant, and it can take away at any time. It’s also going to make clear that nothing in the telecommuting policy changes at-will employment, that kind of thing. And it really depends on the organization. It might get really in-depth into information security concerns. You might also want a second policy that’s a confidentiality nondisclosure agreement for employees who are going to be working from home with customer data, that kinda thing.

As usual, McAfee & Taft lawyers are here to help you determine if a telecommuting policy is right for your workforce and to drafting that policy.

This Attorney Q&A has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Q&A without seeking professional counsel.

May 18, 2020