Telecommuting Policies: Key Drafting Tips

By: Joseph D. Guarino, DLA Piper LLP

Telecommuting and work-from-home arrangements are increasing exponentially during the novel coronavirus (COVID-19) pandemic as a way of protecting employees and customers from exposure. In addition, telecommuting arrangements help attract and retain employees, create a professional atmosphere supportive of employees reaching their full potential, and meet the needs of a 24-hour global marketplace.

However, allowing employees to work remotely or from home is not always possible or beneficial for the employer. Telecommuting may not be feasible for certain jobs, such as those in the service industry. And, even if feasible, some employees will take advantage of the arrangement because working outside of the office setting may diminish the employer’s control and the employee’s accountability.

Any well-written telecommuting policy should include the following:

• ✔ Which positions are eligible for telecommuting
• ✔ How to request a telecommuting arrangement
• ✔ Any restrictions on telecommuting, for instance, if the employer only allows telecommuting a few days each week
• ✔ A clear statement that employees who telecommute continue to be responsible for complying with all employer policies and procedures

Additionally, employers should consider entering into a stand-alone telecommuting agreement with employees for whom the employer has approved telecommuting arrangements. This agreement may detail any specifics of the telecommuting arrangement (e.g., hours of work, how non-exempt employees will record time, communication with the employee’s supervisor, company equipment, etc.) and include a disclaimer that the employer may withdraw permission to telecommute at any time.

Sample Language for Telecommuting Policy with Drafting Notes

Telecommuting Policy

[Company] may allow [full-time] employees to telecommute (i.e., work remotely or work from home). All requests to telecommute should be in writing and submitted to your supervisor and the Human Resources Department. All telecommuting arrangements must be approved in advance by [Company]. Permission to telecommute is at [Company’s] discretion and can be withdrawn at any time.

Employees permitted to telecommute will be required to sign a written telecommuting agreement that, among other things, describes the agreed-upon hours of work, how hours will be recorded, communications with your supervisor, when (if at all) you will be required to report to [Company’s] offices, equipment issued to you, the security of any [Company] equipment issued to you, and technological support. In addition, employees permitted to telecommute must continue to abide by all employment policies, including those found in this Handbook. Failure to follow this agreement or these policies may result in discipline (up to and including the termination of your employment) and/or the termination of the telecommuting arrangement.

Drafting Note:
You should advise employers to enter into a stand-alone telecommuting agreement with employees for whom the employer has approved telecommuting arrangements. This agreement should detail any specifics of the telecommuting arrangement and include a disclaimer that the employer may withdraw permission to telecommute at any time.

This policy applies to employees permitted to telecommute on a regular basis. This policy does not apply to requests for reasonable accommodation or occasional work-from-home arrangements such as in instances of inclement weather. Employees requesting to telecommute as a reasonable accommodation should follow [Company’s] procedures on requests for reasonable accommodation.

Drafting Note:
Working outside of the office setting may diminish the employer’s control and the employee’s accountability. Because some employees will take advantage of the arrangement, the policy should include a clear statement that employees who telecommute continue to be responsible for complying with all employer policies and procedures.

If you have any questions regarding this policy or if you have questions about telecommuting that this policy does not address, please contact the Human Resources Department.

Drafting Note:
For information on reasonable accommodations, see Disability and Reasonable Accommodation Policies: Key Drafting Tips and Americans with Disabilities Act: Guidance for Employers.

Joseph D. Guarino is a partner at DLA Piper. His practice emphasizes the representation of management and employers in labor and employment matters, including both preventive counseling and litigation. His clients have a national and worldwide presence and primarily conduct business in the healthcare, dietary supplement, transportation, retail, and financial services industries. He regularly advises clients on layoffs, terminations, disability accommodations, hiring and firing, medical leaves, policies and procedures, wage and hour issues, employee theft, workplace investigations, employment agreements, and background checks. On the litigation side, he has litigated every type of employment dispute, including FLSA class actions and representative hearings before the National Labor Relations Board.

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