Telecommuting is when an employee works from home. Thanks to the internet, employees can often perform the same job at home as they would while in an office. Telecommuting offers flexibility to employees and allows employers to save money.

It is important to note that being a work-from-home employee is not the same as being an independent contractor. Different employment laws apply to those situations.

There are certain employment laws that apply even if an employee is working from home on an ongoing basis. In every state except Montana, at-will employment laws apply.

At-will employment means that an employer may terminate an employee at almost any time and for almost any reason. The only restrictions on these rules are that the termination cannot be based on a discriminatory factor such as:

  • Age;
  • Sex;
  • Race; or 
  • Disability.

If an employee has a disability, their employer is required to take certain steps to accommodate those workers and allow them to complete their job duties. The Equal Employment Opportunity Commission (EEOC) oversees workplace discrimination issues. Pursuant to the EEOC, allowing a disabled employee to work from home is considered an accommodation.

In these cases, a disabled employee can request to telecommute to work. Their employer must allow this accommodation unless doing so would cause undue hardship for the employer. 

An independent contractor, on the other hand, is an individual who works for a company, either under a contract or on a case by case basis. Although an independent contractor is employed to work for a company, they are not considered employees of that company. In the current climate, independent contractor telecommuting jobs are becoming more commonplace.

In general, independent contractors cannot collect worker’s compensation in the event of an injury. However, eligibility depends on the state law and the terms of the individual’s employment.

The majority of labor and employment laws do not apply to independent contractors. One of the main ways to determine if an individual is an independent contractor or an employee is to examine how they are compensated for their work. If an individual is on payroll and consistently receives paychecks, they are likely classified as employees.

Are All Employees Allowed to Telecommute? 

In short, no, not all jobs are conducive to telecommuting and not all work can be performed remotely. However, the COVID-19 pandemic requires employers to give more consideration to positions which can be telecommuting positions. For some employers, this may be the first time in the history of their business that telecommuting has been an option.

Each employer should establish a work from home policy that is tailored to responding to the COVID-19 pandemic. The policy does not have to be part of the employee handbook.

The policy may be a stand alone document. It should include issues such as:

  • Which employees are permitted to work from home, since not all positions are conducive to telecommuting;
  • The hours an employee is expected to work, including:
    • Start and stop times;
    • Meal breaks; and
    • Other break periods;
  • Expected productivity standards;
  • Logistical plans for necessary items such as:
    • Turning in work;
    • Conference calls; and
    • Online meetings; and
  • Rules for bringing work documents home, which includes adherence to confidential and data safety protocols.

When an employer is selecting which employees are permitted to work from home, they must be careful not to discriminate based on a legally protected characteristic. For example, an employer cannot mandate that all employees over the age of 55 must work from home.

As previously noted, the EEOC stated that working from home may be an accommodation according to the Americans with Disabilities Act (ADA). However, the ADA does not require an employer to provide a work from home option. It is also important to note that the ADA only applies to employers with 15 or more employees.

What are My Rights Regarding Telecommuting in Connection with COVID-19 Issues?

In most cases, employers have set up work from home employees when possible during the COVID-19 pandemic. As noted above, an individual’s rights will differ depending on whether they are an independent contractor or an employee.

In many cases, independent contractors already work from places other than the workspace, so their situation may not change much or may remain the same. Employees, however, will likely face changes.

If an employees position was transitioned into a work from home position only for the pandemic, they will be required to return to the office. However, there may still be instances where they will work from home, such as if they or another employee contracts the virus.

In some cases, there may be individuals with other underlying health conditions who may want to request an extension of their time working from home in order to limit their chances of exposure to coronavirus. During the pandemic, an employer is permitted to ask an employee if they are experiencing symptoms of the virus.

All laws regarding disability and discrimination in the workplace, such as the ADA, continue to apply during the COVID-19 pandemic. However, these laws do not interfere with an employer’s need to follow the CDC, state, and local guidelines regarding the virus, which can change on a daily basis.

Prior to allowing an employee to return to work, an employer may require a negative COVID-19 viral test. However, an antibody test is not permitted because it is considered a medical examination and does not meet the ADA’s standard of being job related and consistent with business necessity.

During the pandemic, an employer may have to provide reasonable accommodations for employees whose disabilities put them at a greater risk from COVID-19. Certain accommodations may be available on a temporary basis that should not cause an undue hardship on an employer.

Employees who request reduced contact may be accommodated by changes to the work environment, including:

  • One-way aisles;
  • Plexiglass;
  • Tables; or
  • Other barriers that ensure minimum distances between individuals.

It is essential for employers and employees to be flexible regarding accommodations during this time. This may include changes such as:

  • A temporary transfer to another position;
  • Modification of a work schedule; and
  • Modification of a shift assignment.

Do I Need to Return to In-Person Work Once the Pandemic is Done? 

If an individual’s employer permitted them to work from home only during the COVID-19 pandemic, then, yes they would need to return to in-person work when their employer resumes normal operations. During this time, however, there may be instances where the individual may be required to work from home again, such as if they contract the virus.

Many employers have established work from home parameters only in response to and only during the COVID-19 pandemic. If an individual worked from home during this time, their employer should have outlined the purpose of working from home, the duration, and when employees would be required to return to the office. 

As restrictions ease, employers will be seeking to have office employees return to the workplace. An employer must ensure they are adhering to local, state, and federal guidelines during this time.

There may be changes to a workplace when employees return, such as barriers and changes in layout. There may also be stricter sanitation requirements.

This process of returning to the workplace will be new for both employers and employees. It is important to remain flexible during this time, as the rules and regulations are updated often.

What if I Feel My Rights Were Violated in Relation to COVID-19 and Telecommuting Rights?

If an individual feels their rights were violated in relation to COVID-19 and their telecommuting rights, they should contact a lawyer as soon as possible. It is important to remember that, in most cases, telecommuting is temporary during the pandemic. 

If an individual is considered an employee, they retain their rights even while working from home. 

Should I Hire an Employment Lawyer?

Yes, it is extremely important to have the assistance of an experienced employment lawyer for any issues you may have related to telecommuting. If you believe your rights have been violated while telecommuting, it is essential to contact an attorney as soon as possible, as there are statutes of limitations on filing claims. Your attorney will review your case, determine if your rights have been violated, and assist you in filing your claim in the right place.