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Work-From-Home Policies: Avoiding
Employment Claims Under the
ADA, FMLA, FLSA and More
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
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
A wider lens on workplace law
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
A wider lens on workplace law
Types of Alternative Work Arrangements
• Flextime
• Compressed workweek
• Part-time schedules
• Job sharing
• Snowbird programs
• Telecommuting
7
A wider lens on workplace law
Legal issues
Robin E. Shea
Winston-Salem, NC
336-721-6854
A wider lens on workplace law
OVERVIEW
• Americans with Disabilities Act
• Family and Medical Leave Act
• Workers’ Compensation
• Fair Labor Standards Act
9
A wider lens on workplace law
Americans with Disabilities Act
10
A wider lens on workplace law
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
A wider lens on workplace law
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
12
A wider lens on workplace law
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
A wider lens on workplace law
Trends in the courts
14
A wider lens on workplace law
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
A wider lens on workplace law
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?
16
A wider lens on workplace law
If the answers to most of these questions are “YES,” then you should consider allowing telecommuting as a reasonable accommodation under the ADA.
17
A wider lens on workplace law
And even if you think the answer will be “no,” always discuss options with the employee and document your decisionmaking process.
18
A wider lens on workplace law
Family and Medical Leave Act
19
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
Workers’ Compensation
23
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
Fair Labor Standards Act
29
A wider lens on workplace law
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?
30
A wider lens on workplace law
The slacker
• Goofs off a lot
• Not productive
• Still posts an 8-hour workday
31
A wider lens on workplace law
The “dream employee” (a wage-hour nightmare)
• Loves the job and the company!
• Would do anything!
• Would never dream of
reporting overtime!
32
A wider lens on workplace law
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
A wider lens on workplace law
Not this!
SUN. MON. TUES. WED. THURS. FRI. SAT.
0 8 8 8 8 8 0
40 hours – no problem!
34
A wider lens on workplace law
Better!
SUN. MON. TUES. WED. THURS. FRI. SAT.
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
A wider lens on workplace law
BEWARE!
• Many states and cities have their own wage and hour laws, and the requirements may be more stringent than the FLSA requirements.
• Always be aware of the law in your jurisdictions.
36
A wider lens on workplace law
Drafting Work-From-Home Policies
Christin Lawler
San Francisco, CA
415-918-3016
A wider lens on workplace law
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
38
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
BEWARE!
Telecommuting is not a substitute for dependent care
… But consider FMLA and ADA reasonable accommodation issues when employees request a telecommuting arrangement
41
A wider lens on workplace law
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
A wider lens on workplace law
SUN. MON. TUES. WED. THURS. FRI. SAT.
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
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
A wider lens on workplace law
BEWARE!
• Many states and cities have their own wage and hour laws and specific requirements that may impact telecommuting policies.
• Always be aware of the law in your jurisdictions.
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
Americans with Disabilities Act (ADA) Analysis
• 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
Americans with Disabilities Act (ADA) Analysis
• 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
Americans with Disabilities Act (ADA) Analysis
• 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
Practical Considerations
• 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
Practical Considerations
• 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
Practical Considerations
59
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