Do you have the right to work from home?

In light of the rising dig­i­tal­iza­tion of many in­dus­tries, the home office is a topic of growing im­por­tance. For many employees, a home office provides greater flex­i­bil­i­ty and a better work-life balance. Because staff no longer have to travel to their place of work, they have more time for family, hobbies, and other ac­tiv­i­ties without needing to reduce their hours or lose pay. But not every employee enjoys the luxury of working from home. Who’s entitled to work from home?

Whilst some countries such as the Nether­lands have already es­tab­lished laws governing the working from home, the United States labor laws do not currently include a right to work from home. In other words, it is entirely at the dis­cre­tion of the employer to permit flexible working or home working. A home office law as such does not exist. However, under the Family Medical Leave Act (FMLA), some employees with special medical con­di­tions or those closely caring for others with medical con­di­tions may be able to apply to work from home.

Employees who do not fall under the FMLA special criteria are generally not entitled to work from a home office. The decision whether staff can work flexibly lies with the employer. If no pro­vi­sions for working from home exist in a business, employees can raise a relevant inquiry. However, company owners are not legally required to comply and can reject ap­pli­ca­tions for home working.

According to the US Fair Labor Standards Act, employers can implement remote and flexible working for their employees as long as they maintain an accurate record of the hours worked. Where an employee is allowed to work from home, the relevant pro­vi­sions can be included in their em­ploy­ment contract. Ad­di­tion­al con­di­tions and frame­works for flexible working can also be agreed upon, for example, how often an employee gets to work from home, how they may be contacted, what equipment is provided, or how overtime is cal­cu­lat­ed. If staff did not pre­vi­ous­ly have the right to work from their home office, the reg­u­la­tions can be added as a sup­ple­ment to their existing em­ploy­ment contract.

The right to work from home doesn’t nec­es­sar­i­ly need to be included in an em­ploy­ment contract. Labor agree­ments could also regulate flexible working arrange­ments. Large cor­po­ra­tions with labor agree­ments in place can define home office rights within these reg­u­la­tions. Home working pro­vi­sions may also be defined in­ter­nal­ly between man­age­ment and a staff as­so­ci­a­tion or a work council where one exists. However, the right to work from home cannot be forced and always remains at the dis­cre­tion of the employer.

Generally, an employer may suggest home working to staff. However, that’s not to say that a company could then simply neglect to provide a place of work for its employees – unless this is an explicit condition of the original em­ploy­ment contract or an agreed amendment. Employees can also decline to work from home and continue to visit the office to do their work. Just as there is no law reg­u­lat­ing the en­ti­tle­ment to a home office, there’s no law which mandates flexible working for employees.

When offering flexible working, it’s important that both employees and employers legally define the con­di­tions for the home office. Despite existing clauses in one’s em­ploy­ment contract, an employer can mandate a member of staff to attend the office. This is relevant when, for example, a staff member’s presence is urgently required at a meeting. Where a business wishes to introduce working from home, the following questions should be addressed:

• Is the job generally ex­e­cutable from home? Whilst most office workers will be able to perform their jobs working from home, certain pro­fes­sion­al groups must attend their place of work, for example, doctors, sales personnel, or mechanics.
   
• How often is an employee allowed to work from home?
   
• How may the employee be reached when working flexibly?
   
• Are there any core hours of business during which employees must be reachable?
   
• How is overtime treated? Is overtime even possible?
   
• How are break times defined?
   
• Is there a means to record/log working hours?
   
• What materials does the employer provide?
   
• How are data security and safety at work guar­an­teed?

If or when a dedicated home office law will be passed in the US remains unclear. Employees with families or those who are care­tak­ers for a disabled or ill family member should generally be en­cour­aged to work from home. Even if a dedicated home office bill was to pass in the US, it would probably never apply to all employees un­con­di­tion­al­ly. Many workers have to attend their place of business in order to fulfill their jobs. In addition, teamwork and other internal reasons could hamper any right to working from home. A home office legal framework that would apply to all employers equally is, therefore, unlikely to pass any time soon. However, many employers are now willing to allow flexible working to give employees a better life-work balance.

Generally, an employer may suggest home working to staff. However, that’s not to say that a company could then simply neglect to provide a place of work for its employees – unless this is an explicit condition of the original em­ploy­ment contract or an agreed amendment. Employees can also decline to work from home and continue to visit the office to do their work. Just as there is no law reg­u­lat­ing the en­ti­tle­ment to a home office, there’s no law which mandates flexible working for employees.

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