Lady working from home while sitting next to her dog and on her sofa

Technological advancements now enable employees in essentially all industries to seamlessly and securely connect to their corporate network platform remotely using only internet access and a laptop. The popularity of telework has grown tremendously over the past decade—particularly with the ongoing social distancing and risk mitigation protocol associated with the COVID-19 pandemic. The following checklist offers some useful guidance on handling the numerous legal and practical challenges small businesses encounter when implementing an efficient, sustainable telework program:

Telework & the Americans with Disabilities Act (ADA)

The ADA applies to employers with 15 or more employees, including employment agencies and labor organizations. The ADA outlaws discriminatory policies against disabled workers and ensures that those individuals are afforded equal opportunities for employment. Title I of the ADA mandates that employers provide “reasonable accommodation” to qualifying disabled employees and offers them a cause of action if their employer does not adequately provide accommodation.

Generally speaking, an accommodation is any modification of the workplace or in the manner in which operations are typically performed that allows a disabled employee to be afforded equal employment opportunities. More recently, there have been a number of lawsuits contesting the issue of whether telework should be a considered a reasonable accommodation per the ADA.

When determining if a telework model is a reasonable accommodation, small business owners should keep in mind that an overarching formal telework initiative is not necessary. Implementing a case-by-case analysis of allowing certain disabled employees a telecommunicating option is a perfectly acceptable approach. If an employee’s disability creates significant limitations to the extent that they are unable to sit, stand or move in a manner that may make travel unmanageable then a telework accommodation may be required. Employers should conduct the reasonableness of a telework accommodation on an individual basis using an interactive model with the requesting employee to determine whether they can adequately perform their essential job roles remotely.

The following are a few questions that small business owners should ask themselves when making telework accommodation decisions:

  • Is necessary supervision of the worker possible on a remote basis?
  • Does the worker need access to specialized equipment or machinery that is unavailable remotely?
  • Is in-person collaboration with co-workers necessary for the worker to adequately fulfill job responsibilities?
  • Must the employee routinely reference documents or information stored only on-site?
  • Do colleagues with comparable roles and responsibilities have the option to telework?
  • Has the requesting worker worked remotely in the past without a decline in work performance or accountability?
  • Does the current job description of the worker’s position explicitly mention on-site presence for some or all tasks?

Take note that even if a small business owner determines that some operations have to be performed in-office, they must still analyze if the employee can work remotely on a part-time schedule.

Telework & the Fair Labor Standards Act (FLSA)

The FLSA mandates that business owners must pay nonexempt workers: (1) minimum wage for all hours work and (2) a minimum 1½ times a worker’s normal pay rate for any additional hours worked over 40 weekly. While that’s easy enough to follow, the FLSA also requires employers to pay employees not just for their required tasks but also for work not specifically requested but “suffered or permitted” to be completed. This covers scenarios in which workers work overtime with a business owner giving them permission but the owner “knows or has reason to believe” that the worker was still working in excess of the 40 hours for that week.

Accordingly, telework is often considered an issue related to the FLSA as it can be impractical for an owner to accurately keep tabs on a teleworker’s hours when they are remote. In order to effectively mitigate instances of false overtime claims, small business owners should consider implementing these protocols:

  • Install software that can accurately measure and submit working hours remotely and require remote workers to sign a written agreement that they will solely use the company-installed software to record work time
  • Draft a written corporate policy banning all unauthorized overtime—giving business owners a viable claim that any overtime was not “suffer[ed] or permitted”

Telework & the Occupational Safety and Health Act of 1970 (OSHA)

OSHA was implemented to provide employees safe working environments and is applicable to all private employers in the United States. This means that small business owners are required to ensure that their workspace is free from certain significant hazards, track work-related injuries and illnesses and remain compliant with specified OSHA standards. In terms of telecommuting, the U.S. Department of Labor has clarified the following points:

  • Officials will not conduct in-person inspections of remote working locations
  • Employers are not expected to personally inspect employees’ remote working locations
  • Employers will not be held liable under OSHA for the conditions of employees’ home offices

The only scenario in which a business owner may need to perform more due diligence to ensure OSHA compliance is when the home work environment is intended for more than just normal clerical administrative work—for example, if the employee is required to perform manufacturing operations remotely.

While OSHA does not mandate that employers inspect their teleworkers’ remote working environments for health and safety concerns, there are advantages of promoting safe working conditions for remote workers. If a business falls under certain size or industry categorizations established by the Department of Labor, they may be required to record any work-related injuries (including those incurred by remote workers) if “the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” Additionally, employers could face liability concerns for any injuries incurred via the use of corporate-provided devices or electronics provided to facilitate teleworking. Injuries suffered at home could also be covered by workers’ compensation.

Accordingly, small business owners should consider developing safety checklists for all remote workers addressing the following hazards:

  • Fire: Ensure home office has a functioning smoke detector, accessible exits, etc.
  • Electrical: Encourage use of surge protectors, functional extension cords and power strips
  • Ergonomically designed furniture and equipment
  • On-site first-aid kit and detailed evacuation plan

Drafting a Telecommuting Policy

If a small business owner opts to offer teleworking arrangements, they should draft and distribute an official policy to promote consistent standards. All remote workers should be required to sign a written telework agreement.

The telework policy should at a minimum have a clause dedicated to the following:

  • How employees can request telework accommodations and the criteria used to evaluate the reasonableness of a remote work option
  • Describe all eligibility requirements and performance expectations
  • Explicitly state that all remote workers must satisfactorily accomplish all responsibilities, be available during regular working hours, maintain a safe working environment, comply with timekeeping protocol established by employer, etc.
  • State what telework-incurred expenses are reimbursable
  • The number of working hours the employee is expected to work remotely and on-site
  • Require that teleworkers remain at-will employees during the term of the teleworking agreement and remain subject to all applicable corporate policies and procedures

Note that there are numerous federal and state labor statutes requiring employers to post easily visible notices of certain workplace laws and regulations—a requirement that also applies to remote workers. To ensure that small business owners that have remote workers on their payroll remain compliant with these law, they can either electronically post the notices to the company employee intranet or physical mail remote workers a copy of the notices.

Information Security & Telework

Small business owners should remain cognizant of data security concerns. Irresponsible practices by remote workers can significantly compromise information security and drastically impact operational efficiency and sustainability. To effectively mitigate any potential security risks, business owners should implement the following advisements and requirements into their telework agreements:

  • Ensure all devices owned by remote workers are data encrypted
  • Mandate remote workers use secured internet connections to perform work functions
  • Reemphasize confidentiality protocol
  • Do not allow remote workers to use personal email addresses for work related correspondence or use public Wi-Fi connections
  • Require workers to store data on a central file database instead of locally on their device
  • Conduct info sec training so remote workers have the ability to identify suspicious emails
  • Itemize all issued materials and equipment issued to remote workers and ensure it is returned in working condition

Let Us Help You Prepare Your New York Small Business Teleworking Policy And Agreement

Teleworking presents a broad range of unique issues and challenges for employers across all industries. We know that as a small business owner, you already have a lot on your plate with running your business. The good news is that you do not have to develop a telework policy and agreement all on your own. We have years of experience and insight navigating the myriad of legal concerns associated with remote working. Contact us today to learn more about we can assist you in developing a customized teleworking policy that aligns with your business goals!

Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, startups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Francine E. Love
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Founder and Managing Attorney at Love Law Firm, PLLC which dedicates its practice to New York business law