Work-From-Home Policies: Avoiding Employment Claims Under

Work-From-Home Policies: Avoiding

Employment Claims Under the

ADA, FMLA, FLSA and More

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1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

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TUESDAY, FEBRUARY 26, 2019

Presenting a live 90-minute webinar with interactive Q&A

Jessica Brown, Partner, Gibson Dunn & Crutcher, Denver

Christin Lawler, Attorney, Constangy Brooks Smith & Prophete, San Francisco

Robin E. Shea, Partner, Constangy Brooks Smith & Prophete, Winston-Salem, N.C.

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A wider lens on workplace law

Alternative Work Arrangements

Christin Lawler

San Francisco, CA

415-918-3016

[email protected]


What Are Alternative Work Arrangements?

• Any work schedule that deviates from the traditional “Monday through Friday, 9-to-5” workweek.

• Any arrangement where an employee works outside of the typical place of employment.

6


Types of Alternative Work Arrangements

• Flextime

• Compressed workweek

• Part-time schedules

• Job sharing

• Snowbird programs

• Telecommuting

7


Legal issues

Robin E. Shea

Winston-Salem, NC

336-721-6854

[email protected]


OVERVIEW

• Americans with Disabilities Act

• Family and Medical Leave Act

• Workers’ Compensation

• Fair Labor Standards Act

9


Americans with Disabilities Act

10


ABCs of the ADA

• Prohibits discrimination against qualified individuals with disabilities• Actual disability

• History of disability

• “Regarded as” having disability

• Requires confidentiality of employees’ medical information

• Restricts medical inquiries that employers can make

• Requires reasonable accommodation in appropriate cases

11


Alternative work arrangements

• Can be a form of reasonable accommodation

• Job sharing

• Flexible scheduling

• Telecommuting

• “Interactive process”

• Employer does not have to accommodate if

• Accommodation is not “reasonable”

• Accommodation would be undue hardship

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When is telecommuting “reasonable”?

• EEOC v. Ford Motor Company (6th Cir. 2015): Employer does not have to allow telecommuting for employee with severe, unpredictable IBS

• Attendance is an “essential function” of any job

• Employer, not employee, decides which functions are “essential”

• Ford engaged in interactive process and tried several accommodations, all of which failed

• Employee held position that required significant “face time” but insisted on working from home four out of five days a week . . . indefinitely.

13


Trends in the courts

14


ADA considerations

• What is the nature of the disability?

• Do you have documentation from the employee’s health care provider about the disability, and how/whether telecommuting would resolve issues related to job performance?

• What is the nature of the employee’s job? Can it (or parts of it) be done remotely?

• If the employee works from home, will you be able to adequately monitor attendance, punctuality, productivity, and job performance?

15


More considerations

• Does the employee have the necessary infrastructure at home to get the job done?

• Fast wifi

• Ability to access sensitive information through a VPN or Citrix

• Ability to be reached quickly by phone and email

• If not, are you willing to provide it?

• Can the employee work with minimal supervision?

• Is the employee FLSA-exempt? (more on this soon!)

• Does the employee have enough personal integrity that you can trust the work is getting done?

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If the answers to most of these questions are “YES,” then you should consider allowing telecommuting as a reasonable accommodation under the ADA.

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And even if you think the answer will be “no,” always discuss options with the employee and document your decisionmaking process.

18


Family and Medical Leave Act

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ABCs of the FMLA

• Requires employers of 50 or more employees to provide 12 weeks of unpaid leave in a 12-month period for• Employee’s serious health condition

• Serious health condition of employee’s spouse, parent, or child

• Birth, adoption, or foster placement of child

• Military “qualifying exigency”

• Requires covered employers to provide 26 weeks of leave in a single 12-month period for “military caregiver” leave.

• Employee must have been employed for at least 12 months (need not be consecutive months)

20


FMLA and alternative work

• If an employee is telecommuting, then that is time worked and should not count against the employee’s FMLA entitlement.

• If an employee has an alternative work arrangement because of an FMLA-qualifying situation,

• Time not worked can count against FMLA entitlement

• Time worked cannot count against FMLA entitlement

21


BEWARE!

• It may be tempting to “encourage” an employee to telecommute or do another alternative work arrangement in lieu of taking FMLA leave. This could be considered a form of unlawful FMLA interference. (Discouraging an employee from taking FMLA leave to which he or she would otherwise be entitled.)

22


Workers’ Compensation

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ABCs of WC

• Laws vary state by state

• Generally, provides compensation to employees who suffer injuries or illnesses on the job

• Workers’ comp leave can run concurrently with FMLA leave

• Available on Day One of employment

• “Minimum employee” threshold is very low or nonexistent

24


Alternative work arrangements and workers’ comp

• Alternative work arrangements, if appropriate, may reduce the amount of WC benefits payable to the employee and therefore reduce the employer’s WC premiums

• Could be a form of “light duty”

• In some jurisdictions, an employee who refuses an appropriate light duty assignment may have WC benefits cut off

25


Maintaining a safe workplace

• In a “traditional” workplace, employer can monitor and correct unsafe working conditions

• If employee works remotely, that can be much more difficult

• However, telecommuting work is usually sedentary• Other issues:

• Prompt reporting of “workplace” injuries

• Distinguishing between “working” and “non-working” time

• What if employee’s home is not “safe”?

• Employer may want to consider sending safety personnel to employee’s home when telecommuting arrangement starts, to identify and help employee to rectify any unsafe conditions in the home-work area.

26


ADA-FMLA-WC comparison

• ADA• Disability may or may not be work-related

• Must be relatively serious and somewhat long-term

• Reasonable accommodation must be considered through interactive process

• FMLA• Serious health condition does not have to be that “serious”

• May or may not be work-related

• Employee cannot be “encouraged,” much less forced, to work instead of taking leave (even if it’s a reasonable accommodation)

• WC• Compensable injury must be work-related

• Does not have to be that serious, but usually there is a minimum period of days

• Reasonable accommodation not required but permissible

• Light duty (make-work) is usually encouraged by insurance carriers

• Employee refusal of reasonable accommodation or “make-work” light duty can result in termination of employee’s WC benefits

27


BEWARE!

• Many states and cities have disability discrimination laws and family/medical leave laws that may have more stringent requirements than the ADA and the FMLA.

• Always be aware of the law in your jurisdictions.

28


Fair Labor Standards Act

29


Good news, bad news . . .

• If employee working from home is exempt, no worries:

• Employer must pay full salary if employee performs any work in the workweek (exceptions for PTO, intermittent or reduced schedule FMLA)

• Employee is not entitled to overtime

• If employee working from home is non-exempt, then watch out:

• Is employee accurately accounting for time not worked (break to take the dog for a walk, etc.)?

• Is employee accurately accounting for all time worked?

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The slacker

• Goofs off a lot

• Not productive

• Still posts an 8-hour workday

31


The “dream employee” (a wage-hour nightmare)

• Loves the job and the company!

• Would do anything!

• Would never dream of

reporting overtime!

32


Avoiding wage-hour issues

• Make sure expectations are clear

• Require non-exempt employees to accurately record their time

• Consider setting defined work hours

• Require advance approval for overtime, and discipline employees who don’t comply (but don’t dock their pay)

• Require posting of actual time worked/not worked.

33


Not this!

SUN. MON. TUES. WED. THURS. FRI. SAT.

0 8 8 8 8 8 0

40 hours – no problem!

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Better!


0 START 8:30 START 7:30 START 10 START 8:30 START 7:30 START 2

BREAK 10:10RESUME 10:20

BREAK 10:10 RESUME 10:30

BREAK 10:30-10:45

BREAK 12:20-1

BREAK Noon-1

BREAK Noon-1

BREAK 1-1:30

BREAK 12:30-1:15

BREAK 2:45-3:30

BREAK 2:45-3:30

BREAK 2:45-3:30

QUIT 5:30 QUIT 7:30 QUIT 6 QUIT 5:30 QUIT 5 QUIT 4:30

0 7.42 11 6.25 8.2 8.5 2.5

YIKES! That’s 43.87 hours for the week – good to know!

35


BEWARE!

• Many states and cities have their own wage and hour laws, and the requirements may be more stringent than the FLSA requirements.


36


Drafting Work-From-Home Policies

Christin Lawler

San Francisco, CA

415-918-3016

[email protected]


Overview

Purpose of telecommuting arrangement

Eligibility and approval process

Work hours

Maintaining a suitable work space

Equipment

Expense reimbursement

Security of confidential information

Termination of telecommuting arrangement

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Purpose of Telecommuting Arrangement

• Promote increased productivity, flexibility for employees, and efficient use of company resources

• Telecommuting is a privilege, not a right

• It does not alter the duties, responsibilities or terms and conditions of employment

39


Eligibility and Approval Process

• Application or approval process

• Eligibility for telecommuting

• Nature of the work

• Exempt vs. Non-exempt (beware!)

• Potential costs and savings

• Is the employee a good candidate?

40


BEWARE!

Telecommuting is not a substitute for dependent care

… But consider FMLA and ADA reasonable accommodation issues when employees request a telecommuting arrangement

41


Work Hours

• Telecommuting employees must work during scheduled work hours

• Mandatory meal and rest periods

• Pre-approval of overtime

• Pre-approval of vacation, sick or other leave

• Accurate recording of hours worked

42



0 START 8:30 START 7:30 START 10 START 8:30 START 7:30 START 2

BREAK 10:10RESUME 10:20

BREAK 10:10 RESUME 10:30

BREAK 10:30-10:45

BREAK 12:20-1

BREAK Noon-1

BREAK Noon-1

BREAK 1-1:30

BREAK 12:30-1:15

BREAK 2:45-3:30

BREAK 2:45-3:30

BREAK 2:45-3:30

QUIT 5:30 QUIT 7:30 QUIT 6 QUIT 5:30 QUIT 5 QUIT 4:30

0 7.42 11 6.25 8.2 8.5 2.5

This is what you want to see!

43


Maintaining a Suitable Work Space

• Designated work area suitable for performing employee’s job duties

• Necessary infrastructure (high speed wifi, etc.)

• Right to access or inspect work space with reasonable notice

• Health and safety or ergonomic requirements

• Workers’ compensation considerations

44


Equipment

• Company property vs. personal property

• Company should provide the equipment necessary to perform job duties

• Company equipment must be used for business purposes only

• No right to privacy with respect to company property

• Safeguard company property from theft, loss or damage

• Return of company property

• Company is not responsible for damage to personal or real property

45


Expense Reimbursement

• Computer, printer, scanner, etc.

• What about cell phones?

• Cochran v. Schwan’s Home Service, Inc.,

288 Cal.App.4th 1137 (2014)

• Internet?

• Travel to home office?

46


Security of Confidential Information

• Require employees to access confidential information through secure VPN or Citrix

• Additional safeguards to secure access to confidential documents and information

• Require employees to work in private locations

• Prohibit employees from printing confidential information

• Appropriate destruction or disposal of documents

• Industry specific considerations

• Attorney client privileged documents

• Intellectual property

• HIPAA

47


Termination of Telecommuting Arrangement

• Company may end telecommuting arrangement at any time for any business reason

• Similarly, employees may request to end telecommuting arrangement at any time

• Employees may lose telecommuting privileges if they fail to comply with company policies or the terms of their agreement

• Annual review of telecommuting arrangement

48


BEWARE!

• Many states and cities have their own wage and hour laws and specific requirements that may impact telecommuting policies.


49

Work-From-Home Policies: Avoiding Employment Claims Under the ADA, FMLA, FLSA and More

February 26, 2019

Hypothetical employee requests work-from-home arrangement

Facts relating to requestor and request

What issues do you see?

Analyzing under the ADA

Practical Considerations

51

Best Practices for Training Management

• Is the employee disabled?

• Would work-from-home actually address the employee’s stated limitations?

• Is a work-from-home arrangement a reasonable accommodation?

• Interactive process

• Health care provider documentation

52

Americans with Disabilities Act (ADA) Analysis

• Can the job be performed from home?

• What are the essential job functions?

• Can marginal job functions be reassigned?

• What is the employer’s ability to supervise the employee?

• Are specific tools or equipment required?

• Must the employee interact with clients, colleagues, or customers?’

• Can that interaction happen via technology versus face-to-face?

• What about access to documents and confidential information?

• Can the employee work part-time from home and part-time at work?

• Does the job lend itself to that sort of arrangement if so?

53


• Does the request nevertheless present an undue burden?

• High standard for employers – significant difficulty or expense given the employer’s financial resources and operations

• Employee morale impacts and floodgates concerns will not meet this standard

• Plan ahead for other employees to ask questions

• Consider employee privacy in formulating responses

54


• Is there an alternative arrangement that will resolve the employee’s issue?

• Devices or modifying equipment; job restructuring; different, vacant position; revised schedule; leave of absence; new lighting; noise elimination; physical structural changes; office with a closed door; sign-language interpreters, etc.

• The employer is not required to provide the employee’s preferred solution

• But does the employer allow non-disabled employees to work from home?

• If so, could present a discrimination issue

• Alternative also could be perceived as retaliatory (e.g., sending to an office location without air conditioning)

55


• Do job descriptions accurately reflect job duties?

• Review and update regularly

• Interview front-line managers for essential functions versus marginal functions

• If presence is an essential function, address this requirement in detail

• Does the employee have an appropriate set-up to work from home?

• Best to set up a clearly defined workspace

• Consider technology, equipment, etc.

• Also consider employee safety – as noted, if an employee is injured while working from home, they may have a viable workers’ compensation claim

56


• Is confidentiality being safeguarded appropriately?

• Does the job impact the obligation to secure private third-party information?

• Does the employee have access to company trade secrets?

• Implement appropriate procedures to safeguard privacy and confidentiality

• What type of supervision does the employee require?

• Are there quantifiable expectations such as hours billed, number of calls taken, project deadlines?

• If not, develop specific strategies to manage employee performance and hold employees accountable

57


• Is the employee hourly?

• If so, have a method to ensure compensated for all hours worked

• Put procedures in place to limit and approve overtime

• Some states also have employee rest break requirements

• Keep in mind obligations to reimburse costs such as network and equipment fees

• Consider training the employee on work-from-home best practices

• Pretend you are going into the office (e.g., get dressed)

• Give structure to your workday

• Use technology to stay connected

• Communicate expectations to anyone in your home

58


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Documents

Work-From-Home Policies: Avoiding Employment Claims Under