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Considerations for drafting a telecommuting policy

As companies have been forced to shift to remote working due to COVID-19, having a sound telecommuting policy is vital

A telecommuting policy minimizes legal risk by setting out expectations for the employee and explaining the employer's responsibilities, such as what equipment the employer will provide to the employee and which expenses, if any, the employer reimburses.

A properly drafted telecommuting policy can serve several important functions, including:

  • Defining eligibility to telecommute
  • Providing a specific procedure for requesting approval to telecommute
  • Explaining employee responsibilities (for example, expectations regarding the employee's accessibility during work hours)
  • Setting out employer responsibilities (for example, if the employer provides equipment and technical support to the employee)
  • Reminding employees that they are expected to comply with all employer policies

This article sets forth important information to include in a telecommunication policy and addresses key issues that arise when employees telecommute, including reasonable accommodations for individuals with disabilities, timekeeping, equipment and technology support, communications systems monitoring, workers' compensation, and compliance with the National Labor Relations Act (NLRA).

Telecommuting requests

A telecommuting policy should inform employees that permission to telecommute is not guaranteed and that the employer will approve or deny requests at its discretion. Employers should indicate which employees are eligible to make telecommuting requests, such as only full-time employees or employees that have been employed for a certain amount of time. 

Requiring employees to submit written requests to telecommute to both supervisors and the human resources department ensures all requests are handled consistently. It also minimizes the risk of discrimination claims from employees that claim they were unfairly denied a request to telecommute.

Employers may also include language indicating:

  • What—if any—additional information is required regarding a telecommuting request
  • Whether employees are still required to report to work at the central location on occasion
  • Whether a telecommuting request will be approved for a trial period and then withdrawn or approved for a longer period of time

Telecommuting requests as a reasonable accommodation

Under the Americans with Disabilities Act (ADA), employers are required to provide a reasonable accommodation to individuals with a disability unless doing so would cause an undue hardship. Such accommodations may include telecommuting arrangements.

To avoid the risk of denying a telecommuting request without realizing that the employee is actually making a request for a reasonable accommodation, employers should adopt telecommuting policies with specific procedures for requesting permission to telecommute. The policy should state that it does not apply to requests for reasonable accommodation and should direct the employee to the employer's procedures for reasonable accommodation requests, if applicable.

Complying with employer's policies

A telecommuting policy should also indicate that telecommuting does not eliminate an employee's need to comply with the employer's policies, such as anti-harassment, anti-discrimination, workplace safety, and IT resources and communications policies. Employers may also remind employees that failure to follow all applicable policies may result in discipline and termination of the telecommuting arrangement.

Timekeeping

Employers covered by the Fair Labor Standards Act (FLSA) are required to keep records for nonexempt employees, including records of hours worked each day and total hours worked each workweek. To minimize the risk that nonexempt employees that telecommute are lax about timekeeping, employers should remind them of payroll practices and require nonexempt employees to record all working time accurately.

Equipment and technology support

A telecommuting policy should specify who is responsible for providing equipment for the employee's workspace. An employer that chooses to provide a computer and remote network access can help minimize potential liability by:

  • Specifying that its equipment be used by the employee and for business purposes only
  • Stating the employee is responsible for any intentional damage and returning the employer's equipment when the telecommuting arrangement ends

Employers that provide technology support to their employees should include information regarding when such support is available and the relevant contact information.

Communications systems monitoring and security

Many employers choose to monitor employee use of their electronic communication systems to manage employee productivity and performance. Best practices for workplace monitoring include implementing and distributing a clear electronic communications systems policy and notifying employees that they have no expectation of privacy, and that their electronic communications may be monitored.

To minimize the risk of disclosing confidential information or trade secrets, the policy should also include language requiring employees to use secure remote access procedures and to refrain from downloading company confidential information onto a non-secure device.

Expenses

It is important to specify which expenses, if any, the employer covers. If an employer chooses to reimburse certain expenses—for example, long distance charges—it is important to remind the employee that any additional expenses should be approved in advance.

Workers' compensation

Employees covered by workers' compensation law are generally eligible to receive compensation for injuries or occupational illnesses that arise out of, and in the course of, employment (compensable injuries), although some states have a different standard. This means an employee that telecommutes may be covered by workers' compensation for an injury occurring at home during their working hours.

Since employers' obligations and employees' rights to receive workers’ compensation are largely governed by state law, employers should consult applicable state law and include appropriate language in their telecommuting policy.

Compliance with the National Labor Relations Act

Both unionized and non-unionized employers must ensure that they comply with the National Labor Relations Act (NLRA) when developing and implementing policies, so that:

  • Their employment policies do not infringe on rights employees have under the NLRA
  • They do not enforce otherwise lawful policies to restrict employees' rights under the NLRA

Unionized employers have additional obligations under the NLRA to ensure that they:

  • Bargain collectively with the union or unions representing their employees about terms and conditions of employment
  • Do not unilaterally impose employment policies that contradict the terms of collective bargaining agreements (CBAs) they have with their employees' union or unions

Employers should consider adding language disclaiming an intent to interfere with employees' rights to engage in activities protected by state or federal law, including the NLRA, such as discussing wages, benefits, or terms or conditions of employment, bargaining collectively, or raising complaints about working conditions.

Employers should also consider adding a disclaimer for employees covered under a CBA that indicates the terms set forth in the telecommuting policy work in conjunction with—and do not replace or amend—any terms or conditions contained in their CBA.

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