When Everyone Wants to Work from Home—How to Avoid Discrimination Claims

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By Kathleen J. Jennings ( kjj@wimlaw.com)

One of the CDC’s recommendations to employers faced with a potential coronavirus epidemic is to allow employees to work from home.  Technology makes it possible for many employees to work remotely, but not every job—or employee—is suited to telecommuting.  How does an employer make decisions as to who can and cannot work from home without creating grounds for complaints of discrimination?

  1. Determine which types of jobs are suited to telecommuting. Not every type of job is suited to telecommuting.  Production workers, packers, and anyone who must physically handle product probably cannot do those jobs remotely.  Jobs that allow employees to communicate with the office and one another via technology are best suited to telecommuting.
  2. Determine which employees in those jobs are suited to telecommuting. Here is where the employer needs to be careful.  Decisions about which employees can work from home should have a legitimate, non-discriminatory basis.  That means, for example, that the employer can’t prohibit women with young children from working from home (because they might be distracted).  Or conversely, only employees with young children can work from home, which potentially discriminates on the basis of age.  Ideally, employees should be selected based upon their performance record and attendance history. Think of it this way:  if an employee is goofing off at work in the office, he or she is even more likely to goof off at home, where there is no supervisor to keep an on them and plenty of distractions.   The employer should have documented performance evaluations and attendance records to back up its decisions.
  3. Reasonable Accommodations. If an employees has a medical condition that places him or her in a population that is more vulnerable to the coronavirus, and he or she asks to work from home in order to minimize exposure to the virus, the employer should engage in the interactive process to determine if allowing that employee to work from home is, in fact, a reasonable accommodation.  A major component of the analysis is whether the essential functions of the job can be performed from home.  If they cannot, and the employer denies the request from the employee to work from home, the employer should have documented reasons to support its decision.
  4. Have a written telecommuting policy and procedure. This policy should address issues such as eligibility, equipment, security, hours worked, and safety.  Remember that telecommuting employees who are not exempt from the overtime requirements of the Fair Labor Standards Act should be required to accurately record all hours worked.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She has been successfully telecommuting for several years.  She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

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