Do I have to allow my employees to work from home?

With the rise of remote work over the past few years, many employees are now requesting increased flexibility to work from home. As an employer, you may be wondering if you are legally required to accommodate these requests. There are a few key factors to consider.

The Americans with Disabilities Act

Under the Americans with Disabilities Act (ADA), employees with disabilities may request reasonable accommodations that allow them to perform their essential job duties. Allowing an employee to work from home can be considered a reasonable accommodation if their disability prevents them from being able to physically come into the workplace. Some examples could include:

• A wheelchair user who cannot access your workplace
• Someone with a medical condition like lupus that makes it difficult to commute and be in the office
• An employee with anxiety or depression that is worsened by being in an office environment

If an employee requests to work from home as an ADA accommodation, you need to engage in an interactive process to determine if it is reasonable. As long as it does not create undue hardship for your business, you are legally required to grant the accommodation under the ADA.

The Rehabilitation Act

Similarly, the Rehabilitation Act requires federal agencies and federal contractors to provide reasonable accommodations for employees with disabilities. Allowing remote work could be considered a reasonable accommodation under this law as well.

Title VII of the Civil Rights Act

While not specifically related to disability, Title VII prohibits employment discrimination based on protected characteristics like race, color, religion, sex and national origin. If you allowed other employees to work from home but denied the accommodation for an employee because of their membership in a protected class, they may have a valid claim of discrimination under Title VII.

State and Local Laws

Some states and localities have laws that explicitly protect an employee’s right to request flexible work arrangements as a reasonable accommodation. For example, Vermont’s Equal Pay Act allows employees to request flexible working arrangements to fulfill caregiving obligations. Some states and cities have also started passing laws requiring employers to allow remote work in certain situations.

OSHA General Duty Clause

Under OSHA’s General Duty Clause, employers are required to provide a safe and healthy workplace free from recognized hazards. During the COVID-19 pandemic, several cities and states started requiring employers to allow remote work when feasible to comply with this duty. While most jurisdictions have rescinded COVID-related remote work mandates, OSHA could potentially still cite employers for unsafe conditions related to on-site work.

NLRB Protections

The National Labor Relations Board has ruled that the right to request flexible or remote work arrangements is protected under the National Labor Relations Act. Employers cannot prohibit employees from discussing or requesting remote work options without violating the NLRA.

Job Applicant Protections

Some jurisdictions provide protections to job applicants as well. For example, in Colorado it is illegal for an employer to refuse to interview or hire an applicant solely because they request remote work or location flexibility.

Best Practice Considerations

While you may not always be legally required to allow employees to work remotely, doing so can provide many benefits including:

• Increased ability to recruit and retain top talent
• Improved employee engagement as workers feel trusted
• Enhanced productivity as employees have flexibility to reduce commute times and distractions
• Environmental benefits through reduced emissions if employees do not have to commute

Here are some best practices around implementing remote work:

• Create a formal, written remote work policy to set clear expectations
• Ensure employees have the resources and technology required to do their jobs remotely
• Provide training to managers on overseeing remote workers effectively
• Establish performance metrics and processes for accountability
• Facilitate communication through meetings, instant messaging platforms, and intranets
• Offer opportunities for remote workers to socialize with on-site employees to avoid isolation
• Be flexible based on business and employee needs, allowing hybrid remote/on-site schedules

Key Takeaways

In summary:

• You may be legally required to allow remote work as a reasonable accommodation under the ADA, Rehabilitation Act, and state/local laws
• Avoid discriminating based on protected characteristics when granting remote work requests
• Adopt remote/flexible work policies as a best practice to attract talent and improve productivity/engagement
• Implement remote work thoughtfully ensuring proper resources, communication, and accountability

While it takes effort to support remote staff, the benefits typically outweigh the costs. With some preparation and intent to make it work, remote employees can be just as, if not more, engaged and productive than on-site ones.

Frequently Asked Questions

What are some common legal risks around refusing remote work requests?

Some major legal risks include:

• ADA violation if the remote request was a valid disability accommodation that was unreasonably denied
• Discrimination claims under Title VII or state/local laws if the denial was connected to the employee’s protected class
• NLRA violation if prohibiting remote work discussions/requests conflicts with employees’ rights to organize

Should I require employees who want to work remotely to sign any agreements?

It can be helpful to have remote employees sign a telecommuting agreement covering expectations like:

• Compliance with all policies and procedures
• Maintenance of a safe, secure remote workspace
• Expectations around hours and availability
• Protocols around information security and data protection
• Any requirements around equipment, technology, and support
• Circumstances requiring return to on-site work

This promotes transparency around remote work obligations.

When can I deny a remote work request?

Reasons you may be able to deny a remote work request include:

• The employee’s core job duties truly cannot be done remotely
• It causes an undue hardship or burden on operations
• The employee has demonstrated performance/behavioral issues and lacks accountability
• The employee cannot or will not comply with technology/security requirements
• You have denied similar requests across the board, not just for one group

However, you should carefully assess each request individually in consultation with HR.

How can I build an effective remote work culture?

Tips for building a strong remote work culture include:

• Hiring motivated self-starters suited for remote work
• Establishing virtual water cooler activities to spark informal interactions
• Recognizing remote workers’ contributions publicly
• Bringing remote workers on-site quarterly for team building activities
• Sending care packages with company swag to remote workers
• Scheduling 1:1 virtual coffees to discuss non-work topics
• Soliciting remote workers’ feedback on improvements

What are some key performance indicators to track for remote workers?

Metrics to track for remote workers include:

• Productivity levels and output
• Adherence to schedules and attendance during set hours
• Speed and quality of communications/responsiveness
• Collaboration effectiveness
• Compliance with policies, protocols, and trainings
• Feedback from stakeholders (colleagues, managers, clients etc.)
• Goal and objective attainment

Consistently monitoring these types of KPIs can help spot any issues arising with remote employees.

Comparison of Remote Work Productivity Studies

While study methodologies vary, a consistent trend emerges around remote workers maintaining or improving productivity compared to being on site. This underscores the viability of remote work for many roles and organizations if implemented intentionally.

Conclusion

The COVID-19 pandemic forced a huge shift to remote work out of necessity. But even as offices reopen, remote and hybrid arrangements are here to stay at many companies. As an employer, carefully consider each remote request understanding your legal obligations. With thoughtfulness and the right virtual culture, tools, and policies, remote workers can thrive and excel.