FLSA Implications When Telecommuting Due to Illness

Q: I received an email from an employee stating that he is sick, but will be working from home.  Should I allow my employee to work remotely while sick?  What are the FLSA implications of allowing an employee to work from home while sick?

A: The practice of working remotely or telecommunicating has become increasingly popular given technological advancements like smart phones, videoconferencing, and instant messaging services.  While telecommuting provides several benefits for employers and employees, it can also create new challenges such as when employees opt to work from home while sick.

The Fair Labor Standards Act (FLSA), requires employers to pay employees for all time spent completing productive work, regardless if the employer knew that the work was being performed. Although this rule applies to both exempt and non-exempt employees, an employee’s exempt status determines how one’s payment will be calculated when he or she is working from home while sick.

If an exempt employee works remotely while sick, then the employer must pay the employee for a whole day of work, even if the employee only works for an hour or two. However, if a non-exempt employee works from home while sick, then the employer is only required to pay the employee for the actual amount of time worked.  Thus, under the FLSA, even if an employer prohibits employees from working from home while sick, employees must be paid for any productive work they complete.

Whether a company should allow its employees to work remotely while sick depends on a number of factors, including but not limited to the extent of the employee’s sickness and the nature of the employee’s work. For example, working from home with a sprained ankle is different from working with the flu.  Moreover, certain jobs do not lend themselves to working from home, such as face-to-face customer service, working a cash register, working at a food establishment or a construction site.

If an employer decides to allow employees to work from home when they are sick, it is recommended that the employer create and implement a remote work sick policy. This policy should discuss when a sick employee can work from home, which positions the policy applies to, the types of assignments that can be worked on (i.e. responding to emails, or participating in conference calls), and how employees should track their time.  It is also recommended that the employer include language in the policy that gives it the discretion to limit an employee’s ability to work from home if the employee submits subpar work.  If an illness turns into a qualified disability under the ADA, the employer would need to engage in the interactive process to determine whether a telecommuting arrangement would be a reasonable accommodation.  For more information on telecommuting as a reasonable accommodation, see our blog post here.

For assistance drafting a remote work sick policy, contact a labor and employment attorney.

– Renee C. Manson