Allowing employees to work remotely can be a RIF-alternative that saves employers expenses for overhead, rent and facilities.  In addition, it can be a low or no cost benefit to retain and recruit talent when other benefits or compensation may be cut.  It can also save employees computer expense and time. 

When considering either a specific request for telecommuting or the implementation of a telecommuting policy, employers should look at the following:

•           Is the individual employee and the work s/he performs suitable? Has the employee’s in-office performance been satisfactory? Is the employee reliable and a good communicator?

•           Can the employee’s supervisor manage a telecommuting relationship? Does s/he have the time? Is s/he a good communicator and evaluator?

•           What will be the impact on the rest of the workforce? Will other employees resent the relationship? Will there be a flood of requests? Is there capacity to provide in-office support to the telecommuter?                       

            •           How will the employer respond to the risk of liability for injury to the employee or third-parties in the employee’s home or damage to equipment?


Telecommuting can raise many problems that need to be addressed before implementing a policy or permitting such an arrangement. First, in order to protect itself from liability for injuries, the employer needs to make sure that the employee is in a safe work area. The employer also needs to evaluate the employee’s performance and productivity through time recordation and appropriate supervision. It is critical that the method and frequency of communication with supervisors, co-workers and clients or customers be established. In addition, the employer needs to ensure that its confidential and proprietary information and interactive systems are secure. Finally, other legal issues to consider are whether the employee can work from home during a leave of absence; whether there are tax, jurisdiction, or policy implications when employees work in another state; and, whether there is an applicable collective bargaining agreement.       


One of the most significant legal concerns is whether telecommuting is a reasonable accommodation of a disability under the Americans with Disabilities Act (“ADA”) or other applicable anti-discrimination laws. Disabled employees must be able to perform the essential functions of their job, with or without reasonable accommodation, in order to be protected by the ADA or similar state laws. While employers may assume that regular attendance is an essential job function, it may not be if telecommuting is an option, whether based on policy or past practice. 


The Equal Employment Opportunity Commission suggests that the following factors be considered in determining the feasibility of an employee working at home:


            1.         The employer is able to supervise the employee adequately;

            2.         Any duties require use of certain equipment or tools that cannot be replicated at home;

            3.         There is a need for face-to-face interaction and coordination of work with employees;

            4.         There is a need for in-person interaction with outside colleagues, clients or customers; and/or

            5.         The position requires the employee to have immediate access to documents or other information located only in the workplace.


Under the ADA regulations and various court decisions, reasonable accommodations run a broad spectrum including leaves of absence, reassignment, changes in work schedule, “light duty” work, transfer to a vacant position, and modification of work area. Employers need to consider whether they can provide other accommodations that enable employees to perform their essential functions in the workplace, rather than granting a request to work from home, or whether they can truly demonstrate that allowing employees to work from home would constitute an undue hardship.   


In order to address the foregoing concerns, employers should implement an adequate, effective telecommuting policy, which:


•           Provides eligibility criteria: job type, skills, performance

•           Addresses safety and liability issues, including guidelines for the work area and use of equipment and supplies

                •           Requires regular communication and interaction, including business and social office events

                •           Restricts child (or other dependent) care while working

                •           Addresses compensation, time recordation and reimbursement of expenses

•           Requires confidentiality and security of interactive system

•           Provides guidelines and requirements for work assignments, attendance and work hours

•           Provides for “results-oriented” evaluation of performance

•           Addresses application of Company policies, including the Employee Handbook

                •           Requires employees to review on-site statutory notices

•           Maintains the right of the employer to end the arrangemen


In addition to implementing a policy, an employer also should train the employees, co-workers, support staff and supervisors involved in the telecommuting arrangement. Employees should be provided with guidance on applicable policy; setting up a home office; resisting distractions; adjusting their families to the arrangement; use of interactive systems and equipment; and, maintaining communication. Employers should instruct managers how to identify good candidates and positions; manage varied work schedules; assign work; monitor work performance, attendance and hours worked; maintain communication; and use interactive systems. Support staff and co-workers should understand work assignments and communication.


If an employer is responding to an individual request rather than implementation of a policy, an individual agreement may be appropriate. Such an agreement should include: the employee’s agreement to follow Company policy; the employer’s right to end arrangement; a provision that employer rights are not limited; the supervisor’s agreement; a disclaimer of liability; and, individual requirements and performance goals. An employer, however, should exercise caution in responding to individual requests in the absence of a policy and training because all of the issues and concerns are applicable to any telecommuting arrangement, whether permanent or temporary. In addition, it is important that responses are consistent so as to avoid claims of discrimination or disparate impact.


Clearly, a policy stating that “the employer will respond to requests for telecommuting on a case-by-case basis” or permitting telecommuting on an informal, ad hoc basis can create many issues and possibly liability for an employer. Employers are better served by giving careful consideration to the pluses and minuses of telecommuting and establishing guidelines or agreements in advance. 


This article originally appeared in the June 5, 2008 issue of Employment Law 360.