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  • Writer's picturePaul Peter Nicolai

Remote Work Legal Implications

Updated: Feb 9, 2021

Technological advancements and shifting societal preferences have made remote work programs possible for a significant segment of the workforce. Events related to COVID-19 have forced the wide-spread acceptance of work-from-home arrangements. While many employers will return to normal work patterns, those that decide to implement permanent remote work programs need to understand that there are associated legal risks.

Wage & Hour

FLSA and state law create obstacles for employers implementing remote work programs. They typically mandate that covered employees receive over-time and be paid a minimum wage. Remote work programs can complicate ensuring compliance with these requirements:

  • Remote work programs can increase the difficulty of accurate time-keeping as employers may not be able to as easily supervise start/end times, breaks and overtime.

  • While reimbursable work-related expenses generally mean expenses like uniforms, travel expenses and other employer-directed purchases, if an employer requires employees to work remotely, certain home expenses, like internet bills, might be considered work-related expenses. California, for instance, says that if an employer requires its employees to work remotely, it may be required to reimburse them for expenses associated with phone lines, home internet and necessary hardware.

Employers may be able to mitigate these risks by:

  • Using time tracking software to monitor and accurately track employees’ hours.

  • Clarifying and confining work hours to specified time periods.

  • Implementing clear policies prohibiting employees from working unauthorized over-time hours.

  • Implementing clear policies regarding employee expense reimbursements consistent with applicable law.

  • Using software to remind and require employees to take necessary breaks when appropriate.

Workplace Safety

Employers must provide employees with workplaces free from recognized hazards. Laws governing workplace safety, like OSHA, apply to some extent even when the workplace is a home. If more employers implement permanent remote work programs, these laws may be more liberally applied.

OSHA guidance says OSHA will not hold employers accountable for ensuring safety in employees’ home offices. While OSHA’s this appears to remain unchanged, employers are still required to document and maintain records of work-related injuries that occur in home offices. OSHA provided examples to help determine whether an injury that occurs in a home office is work-related:

  • An injury resulting from dropping a box of work documents on one’s foot is work-related.

  • An injury resulting from a puncture wound by a sewing machine used to perform garment work which becomes infected and requires medical treatment is work-related.

  • An injury resulting from tripping on the dog while rushing to answer a work phone call is not work-related.

  • An injury resulting from an electrocution by faulty in-home wiring is not work-related.

Employers can face significant fines for violating workplace safety laws. OSHA fines are typically subject to reduction; however, a violation remains on an employer’s record for five years, subjecting the employer to the risk of a repeat violation and potentially jeopardizing the employer’s business opportunities by making it difficult to procure government contracts.

Employers may be able to mitigate these risks by:

  • Performing inspections of employees’ home offices to ensure each location is free from recognized hazards.

  • Liberally documenting and recording remote employees’ injuries suffered at home, even if the connection between the injury and the work is slight.

  • Frequently checking in with employees to create a record of consistent monitoring of employee safety.


Regular attendance on-site has generally been an essential function of many jobs, but not all, and the determination is very fact intensive.

A court has held that attendance is an essen­tial function of a department store’s cosmetic sales position, given the interactive nature of the job. That same court said that essential functions of certain jobs, like customer service representatives, may not include attendance when the job can be performed satisfactorily from home. Another court has held that attendance may not be an essen­tial function of positions in human resources if employees can perform work tasks in a timely and effective manner from home.

Typically, an employer’s judgment is given deference in determining whether attendance is an essential function of a position. Mandatory work-from-home programs may test this deference. While it is too early to know, the reality exposed by mandatory work-from-home pro-grams may be a consideration for courts in determining whether on-site attendance is an essential function of a job.

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