Teleworking: Employer Beware

Krishna BalasubramaniThe CEO of Yahoo! recently created headlines by ending the company’s telecommuting or teleworking program. Perhaps not surprisingly, the decision was met with criticism by those who consider it to be going against a modern trend. To be more precise, the practice of telecommuting has grown dramatically in recent years, increasing 31 percent in 2009 to represent 4.3 percent of all employment (up from 3.3 percent). http://www.newgeography.com/content/001798-decade-telecommute

A question that is not often asked is: are employers adequately prepared to handle the workers’ compensation liability created by teleworking employees? There are an increasing number of cases being issued by the Workers’ Compensation Board finding injuries occurring at or near home to be compensable. In Michael D. Razavi, 65 Van Natta 506 (March 8, 2013) a graduate assistance was walking from his office to his apartment that was a couple of blocks away to retrieve work-related items. With his supervisor’s knowledge he had taken his work home. He forgot some of the materials and returned home for no other purpose than to retrieve the materials. He was injured in the process and found eligible for workers’ compensation benefits. In another case, a sales person who was required to keep fabric samples in her van and worked on bids at home, tripped on her dog and injured herself. Sandberg v. J.C. Penney Co., Inc., 243 Or App 342 (2011) on remand 64 Van Natta 238 (2012). She was found eligible for benefits.

Telecommuting can also impact an employer’s obligation under the ADA. The EEOC guidelines provide that an employer is not required to offer a telework program. http://www.eeoc.gov/facts/telework.html. According to the guidelines teleworking is not always a reasonable accommodation. However, if the employer allows telecommuting for some employees then it will be an easier argument for other employees to establish that teleworking is a reasonable accommodation.

An employer who allows teleworking should establish a written policy. As with any policy, once established, it is important that the employer apply the policy in a uniform and consistent manner. A well written policy will include (1) a criteria establishing what types of jobs are eligible for teleworking; (2) core work hours to be maintained during teleworking; (3) all OSHA and ergonomic issues to be considered in the worksite; (4) an established teleworking area within the residence so that the entire residence may not be considered a work area; (5) a written agreement establishing the parameters of teleworking.

As with any employment policy, addressing the issue upfront can help avoid confusion and surprise down the road. If you have additional questions or need assistance feel free to contact one of the attorneys at SBH.