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SAFETY AND OTHEREMPLOYMENT ISSUES CONFRONTING
EMPLOYERS REGARDING TELECOMMUTING

• Presentation ByCharles P. Keller, Esq. Snell
  Wilmer, L.L.P. Phoenix, Arizona (602)
  382-6265ckeller_at_swlaw.com
• www.oshalawyer.net

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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 employees 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.

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I. HISTORY, (contd)

1. As soon as this letter was published, business
   leaders, lawmakers, and employers expressed
   shock and surprise.
2. It took one day for then Secretary Alexis Herman
   to withdraw the policy interpretation.
3. Querywas Richard Fairfax correct?

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CAN ADOSH INSPECT THETELECOMMUTERS WORKAREA?

• Is the telecommuter an employee?
• A.R.S. 23-401(6)employee means any person
  performing services for an employer.
• Is the telecommuters 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.

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CAN ADOSH INSPECT THETELECOMMUTERS WORKAREA?
(contd)

• Is the telecommuters 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.

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CAN ADOSH INSPECT THETELECOMMUTERS WORKAREA?
(contd)

• Clearly, legally speaking, ADOSH has the right to
  conduct an inspection of a telecommuters
  workplace inside a private home.
• The area defined as the workplace must comply
  with the OSHA standards.
• 2000 interpretationOSHA stated
• An employer is responsible for ensuring that its
  employees have a safe and healthful workplace,
  not a safe and healthful home.

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PRACTICAL RAMIFICATIONS

• ADOSH is not going to conduct random inspections
  of telecommuters 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.

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OTHER AREAS OF GREATER CONCERN

• Fair Labor Standards Act
• Wage and hour issues
• Exempt v. non-exempt
• Required to keep accurate time records
• Non-exemptit is the employers burden to track
  hours
• Workers Compensation Claims

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OTHER AREAS OF GREATER CONCERN, (contd)

• 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.
• NLRAprotects concerted and protected activities.

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EMPLOYERS RESPONSES

• Employers do not have to permit telecommuting
• Can restrict it
• Certain employees
• Employees in good standing
• Can withdraw permission
• Can prohibit it

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EMPLOYERS RESPONSES(contd)

• 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

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EMPLOYERS RESPONSES(contd)

• Employers may also require telecommuters to
  participate in training program.
• Merrill Lynch requires participation in two-week
  training program.