Q: COVID-19 has caused employers large and small to require employees to work from home rather than their employer’s worksites. Word has it that this may continue beyond weeks and months and become the new normal. What is my employer’s responsibility/liability for workplace ergonomics and safety when my home becomes my workplace? Do they need to compensate me for my expenses in upgrading my WiFi and getting a new office chair?
A: “That depends,” says FisherBroyles’ management-side employment attorney Eric Meyer. According to Meyer, because the “Occupational Safety and Health Act (OSHA) ensures safe and healthful working conditions — even outside of the normal workplace, employers technically have a duty to protect remote workers at home.”
“But in reality,” notes Meyer, OSHA won’t inspect employees’ home offices. Additionally, OSHA will not hold employers liable for employees’ home offices and doesn’t expect employers to inspect their employees’ home offices. OSHA will only inspect certain home-based worksites, such as home manufacturing operations, when OSHA learns about potential safety or health violations that threaten physical harm, or that an imminent danger exists, including reports of a work-related fatality.”
Meyer adds that the Americans with Disabilities Act may also impact your employer’s responsibility. “Under the ADA, an employer must provide a reasonable accommodation to an individual with a disability to enable the employee to perform the essential functions of the job unless it imposes an “undue hardship” on the employer’s business operations.”
“Telework may be a reasonable accommodation. Further, if an employer mandates telework and an employee with a disability needs help performing the essential functions of the job from home, the employer may have a duty to provide additional accommodations. That changes if telework is only an employment benefit. In that case, employers have a lower level of responsibility.”
“At the state level,” says Meyer, “worker’s compensation comes into play. Generally, worker’s compensation covers an employee injury or illness if it arises out of the employee’s scope of employment. In such cases, location is immaterial, however, employees generally bear the burden of proving a work-related injury.”
“If an employer requires any major changes such as a certain type of internet connection or equipment, then it’s very likely the employer needs to pay for those changes,” notes labor and employment attorney Charles Krugel. “If, however, the employee desires to make changes to their work from home environment, and those changes aren’t required by the employer and aren’t due to a disability and thus not a reasonable accommodation, then it’s likely that the employee needs to bear the burden of those costs.”
“The more the benefit or necessity shifts to the employer, the more likely it is that the employer bears the actual or reasonable costs for those changes. For example, if an employee desires a new Wi-Fi setup or new office chair and the employer doesn’t require or benefit from either, then it’s more likely that the employee is responsible for costs. Every state, and even some municipalities, have their own laws regarding expense reimbursement, so employers need to be careful of jurisdiction. However, my analysis closely tracks state and municipal law on this topic.”
Your employer may also need to reimburse you for any reasonable expenses you incur to fulfill your job duties if these expenses would decrease your compensation below the federal minimum wage.
Given employee expectations that employers should compensate them for home office expenses, employers need to communicate what costs the employers are willing to bear and craft policies requiring advance approval for any expenses over a specified amount.
The bottom line — as an employee working remotely you shoulder much of the responsibility and potentially the cost for home-office upgrades, unless a disability requires that you work from home or your employer requires the upgrades. That said, many employers may reimburse an employee’s reasonable expenses to increase remote employee productivity or maintain morale.