Telecommuting is something that employees see as a benefit and employers tout to build a diverse and younger workforce. Those looking to attract Millennials are especially keen on this arrangement because these workers value flexible work options.
It’s been estimated that more than 50 million workers are involved in some form of telecommuting and that two-thirds of employers offer some form of work-at-home option.
But there can be a downside when it comes to the legal issues involved. And it’s something employers need to contemplate when they consider offering this benefit. Many areas of law come into play including the Americans with Disabilities Act and Workers Compensation statues.
Why would the ADA become an issue? It’s a question of whether an employer must offer telecommuting as a reasonable accommodation to a disabled employee. For employers with 15 or more employees, the ADA specifies that they must offer “reasonable accommodations” to allow someone to do their work. So does a disabled employee have the right to insist on working at home? The courts haven’t ruled definitively on this issue. Part of the consideration for an employer is whether attendance at work is an essential job function. If so, the employer can stipulate that to do the job effectively an employee must be present in the workplace and can’t telecommute. Whether this would violate the ADA depends on the type of job involved, the nature of the employee’s disability and all of the other surrounding circumstances.
Telecommuting also presents issues under Workers Compensation statutes. These laws vary from state to state, but what they all have in common is that they provide some form of protection to those who are injured in the course of their employment. So when a telecommuter gets hurt at home, the question of whether it’s in the course of employment gets interesting. For example, if you’re working in your home office in a chair that’s not as good as the one in your office and you develop arthritis in your neck are you entitled to Workers Compensation? Or, suppose you’re a telecommuter who can’t sleep one night. You go downstairs for cookies and milk at 3 am. While you’re down there you decide to answer an email and you fall in the dark and injure yourself. Are you entitled to Compensation benefits? It sounds like a far-fetched situation, but in California the courts ruled in favor of a professor who was preparing for class in his home office. He slipped on some papers he left lying on the floor and was injured. The court ruled he was entitled to Workers Compensation.
So what are the big workers compensation lessons for here? For the benefit of both employers and employees there should be a well-defined telecommuting policy. One that makes it clear what the hours of work are; what areas in an employee’s home are considered their home office and what their job description is. In short, a good telecommuting policy defines when you’re working and when you’re not working- when that definition is clear, unanswered questions can be avoided.
Telecommuting can be an attractive benefit for an employer to offer, but employers and employees both need to think about how the ADA, workers compensation statutes, and other laws will affect the telecommuting option.