We’re contemplating a new policy that will allow many of our employees to work from home several days a week. Before we launch into this program, I’d like to have some clarification on what responsibilities—or liabilities—we have. If employees are injured while working at home, for example, what happens? If customers get injured while seeing the employee at the home office, who is liable? Should we be inspecting the home office? Checking their insurance or adding a rider to ours? Or am I going overboard worrying about this?
—Conrad C., HR Director in Citrus Heights
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In general, employers are responsible for employee health and safety—regardless of where they happen to work, whether at the office or at home. Several years ago (late 1999 into early 2000), there was an effort by federal OSHA to regulate home offices used by telecommuters that would have included OSHA audits of home workspaces. A firestorm of opposition from various constituencies led OSHA to back off from this regulatory stance.
Accordingly, home offices used for telecommuting remain largely unregulated by OSHA. No federal or California OSHA regulation requires employers to inspect a telecommuter’s home office. (Employers with operations in other states should review their OSHA laws for compliance.) However, that is not to say that employers should turn a blind eye toward safety concerns outside the office.
An employer remains liable under workers’ compensation laws for employee injuries at home arising from work. Employers should therefore have a written policy that covers telecommuting issues. The policy should require that employees immediately report any work-related injury, whether it occurs at home or at the office. It is also advisable that employers provide guidelines about what an appropriate workspace is and which equipment should be used for ergonomic safety.
How to enforce the policy can be a tricky issue, however. Most employers (and employees) do not desire home inspections. One option is to have the employee conduct self-inspections and certify that the home workspace meets the employer’s guidelines.
Conrad raises a legitimate concern about potential liability toward third parties. Let’s say that a vendor or customer has a business meeting with the employee at his home and is injured after slipping and falling on the walkway outside the house. The employer may be liable just as if the injury occurred at the company’s office. The employer may therefore require the employee to carry personal liability insurance. Also, the employer should check with the company’s own liability insurance carrier to ensure that there is coverage for such incidents.
Beyond health and safety issues that arise from telecommuting, a host of other issues can surface. Here are some questions you may need to consider before implementing your telecommuting program:
Who will be allowed to telecommute?
If a manager grants telecommuting requests to some employees but denies requests from others in a protected category, the employer could face a discrimination lawsuit. For example, how should the employer respond to a request to telecommute from an employee in a protected category whose performance is satisfactory but who could truly benefit from coaching and supervision at the office? This may be a legitimate nondiscriminatory reason to deny the request, but not if other marginally satisfactory performers have already been allowed to telecommute.
How will you handle accommodation requests?
How should the employer respond to an inquiry from a disabled applicant or employee who asks to telecommute as a reasonable accommodation? If working at the office is an essential requirement of the job, the employer may deny the accommodation request. However, whether working at the office all the time is essential is not always clear-cut.
What about required meal and rest breaks?
Claims by nonexempt employees that they did not receive meal and rest breaks are common today. How will the employer ensure that these employees, while working at home, take meal and rest breaks? The employer must make sure that, at the very least, the employees document and certify that they have indeed taken required meal and rest breaks. Monitoring computer and telephone traffic is another option to verify that employees actually go “off line” during meal and rest periods. But such monitoring will raise privacy issues that must be addressed.
Who pays for the costs that arise from telecommuting?
Will the employer pay for, or contribute toward, the cost of Internet service and office equipment needed to work at home? In California, the employer must pay for reasonable expenses incurred as a “direct consequence” of performing the job. An employer has to pay for equipment or a utility service that is dedicated to and used entirely for work. But the employer is not required to pay 100 percent of the cost of something that is used by the employee and the family for personal use—for example, an Internet service.
These are the types of issues that should be thought through in advance and addressed in a formal policy before implementing a new telecommuting program.
Allen M. Kato is an associate at the San Francisco office of the law firm Fenwick & West.