Telecommuting is giving employers and employees options they never had before -- opening up office space and providing cost savings to employers, while eliminating travel and easing the burden of childcare for employees. While it seems advantageous for both parties, it does pose challenges for a company's workers' comp program. Employees working from home create exposures that do not occur in an office setting.
Although little workers' compensation case law exists about telecommuting, there are three cases that show the exposure employers face when not setting specific guidelines for their telecommuting employees.
In 1980, in State Compensation Insurance Fund vs. W.C.A.B. / Kinnon (45 Cal.Comp.Cases 253), the California Court of Appeals 4th District ruled in favor of a college professor who slipped on papers at his house while preparing a class syllabus. Although the professor had a work office, he counseled students and prepared class material at home. The Appeals Court decided the professor's home had become a "second work site" where his employer "benefitted from the services performed" at the location, and his injuries were sustained in the course and scope of his employment.
In 2007, in Wait vs. Travelers Indemnity Company of Illinois (No. M2007-00099-SC-R3-WC), a telecommuter was assaulted in her house by her neighbor while preparing lunch. The Tennessee Supreme Court held that the injuries occurred during the course of employment. The Court noted that the employer did not set specific work hours, did not prohibit the worker from taking personal breaks, and did not restrict activities during work hours. Although the Court ultimately ruled against the employee on other grounds, the Court's holding that the injuries occurred during the course of employment expanded Tennessee workers' compensation law to include telecommuters.
In June 2011, the Court of Appeals of Oregon ruled in favor of an employee who was injured when she tripped over her dog while working from home (Mary S. Sandberg vs. J. C. Penney Co. Inc. No. 0702441, A140276). The Court disagreed with the Oregon Workers' Compensation Board, which determined the injury did not arise from her employment. The Appellate Court said the employee worked from home as a condition of her employment, which benefited her employer, and workers' compensation benefits were to be paid.
In another telecommuting case this June, an obese woman died of a blood clot after working long hours in her home-based office -- and her husband was awarded her workers' compensation benefits (James P. Renner vs. AT&T, No.A-2393-10T3). Whether or not poor health contributed to her death, the Superior Court of New Jersey Appellate Division ruled that although she led a "sedentary life in and out of work," she was less active when behind her desk working. Doctors said the blood clot likely formed when she was working overnight to complete a project. The decision in this case was very specific and fact based and the impact of this case on future matters is unknown.
State workers' compensation laws covering employees who telecommute remain underdeveloped. As these cases show, this new territory should be a concern for every employer who has telecommuting employees.
Tips to Avoid Claims
No matter what state they are located in, employers are responsible for providing the same safe work environment telecommuters as for employees who work on company grounds. Companies that permit employees to work from home should take precautionary steps in order to lessen the likelihood of workers' compensation claims.
-- Establish a telecommuting policy. Company policy should outline rules and guidelines for those employees who work out of their home. If done properly, it will help determine whether or not a telecommuter's injury at home is work related.
-- Develop training. Training for employees and supervisors should include an orientation on telecommuting and how it works, as well as providing explanation of policies and procedures, safety, ergonomics and workstation set-up.
-- Choose the right employee. The employer should choose employees for telecommuting positions who have demonstrated responsibility and an ability to work with limited supervision to avoid fraudulent workers' comp claims. The telecommuter should be with the company for at least six months so that they understand their responsibilities without hands on supervision or assistance.
-- Require a separate office area. By requiring an area within the employee's house that will serve as an office, it will help define "on the job" and "work area" when creating a telecommuting policy and if an injury occurs.
-- Set fixed work hours and breaks. Without set hours, an employee may claim any accident at home under workers' compensation.
-- Implement ergonomic procedures. A site check of the employee's home office should be done to ensure the workstation is ergonomically correct. The same furniture and equipment specifications that apply at the company's office should apply to the employee's home office.
-- Insist on periodic breaks. Employees who work at home tend to sit for long periods of time. Encourage them to find time to stand during work (i.e. while on the phone) and take periodic breaks to walk.
-- Perform worksite checks. Telecommuting presents unique safety issues. Inspect the employee's home office for smoke detectors, fire extinguishers, and the adequacy of extension cords and/or the electrical system used. Other safety checks, for such things as exposed cords or tripping hazards, should also be done.
Next Step for Employers
Telecommuting is a popular, growing work option that provides benefits to both the employer and employee. The flexible arrangement allows the employer to save overhead costs while providing flexibility for employees. It can also be a return-to-work option for injured employees.
Employers must design their telecommuting programs carefully in order to minimize workers' compensation issues. Telecommuters face the same risk factors as employees at the office -- work-related injuries and illnesses, fire and electrical safety, and ergonomics. Employers are responsible for providing a safe and healthy working environment for all their employees, no matter their work location.
MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.
The opinions expressed in this column are the author's and do not reflect the position of this publication or Integro Insurance Brokers.
Read more at the WorkersComp Forum homepage.
September 14, 2011
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