The numbers. A whopping 37% of the nation’s work force telecommutes, at least part of the time. And 58% of the workforce reports that they are just as effective when they are telecommuting as when they are in a traditional workspace. So, it makes sense that at least some of the laws that apply to workers in traditional settings carry over to those working from home or at the local Starbucks. And they do.

The basics. As shared in last week’s article, workers’ compensation is a system designed to provide employees who are out of work due to a work-related illness or injury with benefits such as partial pay and compensation for related medical bills. Employers are required to have highly-regulated insurance plans that pay out to qualifying workers.

 

Workers compensation systems are regulated by each state, so the rules vary a bit across the country. There are, however, guidelines that apply to everyone. In general, an employee can file a claim if they are injured or made sick while working, regardless of the location: office, out-of-town meeting, home, Starbucks.

 

But how do I know the worker was actually working when she was injured? When one’s personal life and work happen in the same place, how does one distinguish between the two? When an employee’s home is also an employee’s work premises, courts often interpret hazards of the home as hazards of his or her employment. To successfully claim workers’ compensation benefits, the employee must simply show that he or she was acting in the interest of the employer at the time the injury occurred.  That question is answered by asking if the injury/illness:

1.     Happened during established hours of employment

2.     Happened where the employee reasonably performed his or her work

3.     Happened while the employee was doing tasks for the employer or doing something incidental to that work

Given this analysis, that sleeping dog may very well be a work hazard.

But what about when the employee is taking a break? What if an injury happens then? There is a well recognized “personal comfort doctrine” that says employees still qualify for benefits when they are taking small work breaks for things like going to the bathroom, getting a snack or taking a smoke. As long as the employee does not engage in any unreasonably dangerous or risky behavior during the break, he or she is eligible for benefits.

 

But I’ve never even seen the worker’s home office. How can I be responsible for what happened there? Courts have found that an employer’s lack of control over the conditions of an employee’s home office of home-based work area is irrelevant to liability.

 

So what can I do? At the end of the day, employers can have sweeping liability for things that happen when an employee is working at home. Is there any way to limit potential claims? Your organization should have a written policy that sets all the ground rules on telecommuting. The policy should at least include the following:

 

·       Define the job. The most important first step is a job description so that it is clear what is part of the employee’s job and what is not.

 

·       Delineate the work area. Defining the office area will help mitigate claims of injury in other locations.

 

·       Set work hours. Agree on regular and fixed hours as well as breaks to guard against claims of injury around the clock.

 

·       Visit. By personal visit or otherwise, the employer should verify that the workplace is free from apparent hazards and is also ergonomic.

 

You may have to let sleeping dogs lie, but you can take steps to reduce workers’ compensation claims.