Telecommuting: Safety and Employment Issues for Employers

1. “SAFETY AND OTHEREMPLOYMENT ISSUES CONFRONTING EMPLOYERS REGARDING TELECOMMUTING” Presentation By:Charles P. Keller, Esq. Snell & Wilmer, L.L.P. Phoenix, Arizona (602) 382-6265ckeller@swlaw.com www.oshalawyer.net

2. I. HISTORY • In a November 15, 1999 letter of interpretation, the OSHA Director of Compliance stated: • OSHA Act applies to work performed by an employee in any workplace including workplaces located in an employee’s home. • Employer must retain some degree of control over the conditions of the work at home employee. • This included control over ergonomic, air quality, lighting, and heating issues.

3. I. HISTORY, (cont’d) • As soon as this letter was published, business leaders, lawmakers, and employers expressed “shock and surprise.” • It took one day for then Secretary Alexis Herman to withdraw the policy interpretation. • Query—was Richard Fairfax correct?

4. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA? • Is the telecommuter an employee? • A.R.S. § 23-401(6)—”employee” means any person performing services for an employer. • Is the telecommuter’s home a workplace? • A.R.S. § 23-401(15)—”workplace” means a location or site wherein work is being conducted in connection with a business.

5. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA? (cont’d) • Is the telecommuter’s home subject to inspection? • A.R.S. § 23-408(A)—ADOSH may, upon presentation of credentials, shall be permitted to inspect places of employment, question employees, and investigate conditions, practices or matters in connection with employment.

6. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA? (cont’d) • Clearly, legally speaking, ADOSH has the right to conduct an inspection of a telecommuter’s workplace inside a private home. • The area defined as the workplace must comply with the OSHA standards. • 2000 interpretation—OSHA stated: • An employer is responsible for ensuring that its employees have a safe and healthful workplace, not a safe and healthful home.

7. PRACTICAL RAMIFICATIONS • ADOSH is not going to conduct random inspections of telecommuter’s home. • Two circumstances where ADOSH may inspect a home: • Home-based business with employees working in hazardous conditions. • Telecommuter contacts ADOSH and files a complaint.

8. OTHER AREAS OF GREATER CONCERN • Fair Labor Standards Act • Wage and hour issues • Exempt v. non-exempt • Required to keep accurate time records • Non-exempt—it is the employer’s burden to track hours • Workers’ Compensation Claims

9. OTHER AREAS OF GREATER CONCERN, (cont’d) • Americans with Disabilities Act (“ADA”) • Required to make reasonable accommodations for qualified individuals with a disability. • National Labor Relations Act (“NLRA”) • May jeopardize rules regarding e-mail use. • Rules that prohibit use of company e-mail for non-business purposes may be overbroad. • Telecommuters only method of communication with other employees may be through e-mail. • NLRA—protects concerted and protected activities.

10. EMPLOYERS’ RESPONSES • Employers do not have to permit telecommuting: • Can restrict it • Certain employees • Employees in good standing • Can withdraw permission • Can prohibit it

11. EMPLOYERS’ RESPONSES(cont’d) • Employers can require a telecommuter to sign a contract agreeing to abide by certain terms and conditions. • Approved desk • Requisite lighting • Certain types of chairs • Require certain equipment, i.e. computers, telephones, fax machines • Consent to inspection of home prior to approval • Require child care • Enforce certain report-in requirements

12. EMPLOYERS’ RESPONSES(cont’d) • Employers may also require telecommuters to participate in training program. • Merrill Lynch requires participation in two-week training program.