Rules for a Work From Home Workforce

John Dietrick
CEO & General Counsel
Law Offices of John R. Dietrick, P.A.

COVID-19 is presenting new and unique challenges for employers. These challenges are resulting in work from home solutions. As employers extend work from home options to employees, employers should be aware of federal requirements.

The Department of Labor’s Occupational Safety and Health Administration (OSHA)

OSHA does not have any regulations regarding home offices. OSHA has issued guidance stating that the agency will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.

The Fair Labor Standards Act (FLSA) 

The FLSA does not prevent employers from implementing telework or other flexible work arrangements allowing employees to work from home. However, employers must still maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements.

If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then the employer must pay the employee the same hourly rate or salary as he or she would receive when working in office. 

Generally, even in telework arrangements, exempt employees must be paid their full salary for any week in which work is performed, subject to a few limitations. 

Non-exempt employees typically must be paid for the hours they actually work, whether at home or at the employer’s office/job site. Employers must pay non-exempt employees no less than the minimum wage for all hours worked and pay overtime pay at least one and one-half times an employee’s regular rate of pay for all hours worked over 40 hours in a workweek. 

Employers may not require employees to pay or reimburse the employer for business expenses such as equipment to work at home if doing so would reduce the employee’s earnings below the required minimum wage or overtime compensation. Additionally, employers may not require employees to pay or reimburse the employer for business expenses or equipment if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act. 

The Americans with Disabilities Act (ADA)

Under the ADA, telework could be a reasonable accommodation the employer would need to provide to a qualified individual with a disability, barring any undue hardship. However, an employer may instead offer alternative accommodations as long as they would be effective. An employer may encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions. However, employers must not single out employees either to telework or to continue reporting to the workplace based on perceived health or any other basis prohibited by any of the EEO laws (age, sex, race, disability, national origin, etc.).