With workplaces in Oklahoma reopening for business following Governor Stitt’s “Open Up and Recover Safely” Plan, many employers are evaluating whether temporary telecommuting policies can work in the long term for some employees. There are many reasons why telecommuting may be a desired option at this time, such as enabling busy workplaces to enact social distancing rules by keeping a portion of the workforce home, helping working parents meet childcare obligations, and providing an accommodation to employees who still cannot return to the workplace because of health concerns.

For those workplaces that offered telework as a temporary option in the earlier phases of the COVID-19 pandemic, now is the time to evaluate whether a formal remote working policy is a good fit going forward. While offering telecommuting options may have business advantages such as being a recruiting tool, lowering facility and travel expenses, and boosting morale, there are also legal risks to consider.

Wage and hour issues

Employers must keep minimum wage and overtime issues in mind, and if telecommuting is offered as an option to non-exempt workers, employers must consider how to track the employees’ working time.  As a general rule, employers must pay employees for all hours worked under the Fair Labor Standards Act – even work that was not requested.  Telecommuting employees that are assigned specific work schedules and advised not to work in excess of those schedules are still entitled to payment for work performed if the employer “knows or has reason to believe that the work is being performed.” To mitigate this risk, employers must require non-exempt employees to contemporaneously track and record their hours work, and submit their hours on a regular basis, such as daily or hourly.

This risk does not apply to exempt employees because they are paid the same weekly salary regardless of hours worked. However, employers will generally want to ensure that exempt employees are staying productive while away from the office, and may want to track hours worked for this purpose. On the other hand, studies report that employees who work from home report increased productivity working away from the office —devoid of distractions like inefficient meetings, office gossip, or loud office spaces.

Employers may decide that challenges with productivity and time tracking mean that some positions are suitable for working from home and that others are not.

Safety issues

Employers must consider the duty to provide a safe workplace under OSHA’s general duty clause, which requires employers to provide places of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In the past, OSHA has taken the position that employers are not required to inspect employee homes to determine whether they are safe working environments. In the midst of a global pandemic and with social distancing recommendations in place, many businesses may believe that allowing employees to work from home more easily accomplishes their safety goals than returning the entire workforce to the office, especially those whose work involves primarily computer or phone work. On the other hand, employers should be aware that telecommuting employees who suffer work-related injuries at home may be eligible for workers’ compensation benefits.

Non-discrimination

As always, an employer must be mindful that it is not providing (or requiring) remote work in a way that discriminates against protected classes. For example, an employer who denies a male data-entry employee’s request to work from home in order to meet childcare obligations but allows a female data- entry employee’s request to work from home for the same reason has opened itself up to a claim of gender discrimination.

Information and property security

Employers must ensure that they take steps to protect any confidential, private, or proprietary company or customer information by employees who may be accessing or using the information when working remotely. Companies may want to require telecommuting employees to sign a confidentiality or non-disclosure agreements.  Electronic access to confidential data should be allowed only through a secure connection, such as a VPN.

Employers must also decide if they will allow employees to work on their own electronic devices, in which case the employer should consider a “bring your own device” policy that allows it to retrieve company data from the employee’s device if necessary, and informs employees of their rights and responsibilities with regard to the use of their own devices.

On the other hand, companies who provide equipment or property should require telecommuting employees to acknowledge receipt of the property and ensure that they will keep it protected from theft or damage, and return property at the end of the working relationship.

Bottom line

An experienced employment attorney can assist with assessing the legal risks of a telecommunicating plan and in drafting a telecommuting policy that is tailored to your workplace.