27 Nov Workers’ Compensation and the Teleworking Employee
Teleworking or telecommuting, allows employees to perform their work remotely, either from home or other locations outside of the traditional office. While telecommuting has become a popular option for employers and employees alike, there are many issues to be aware of regarding work-related injuries involving employees working from home.
Workers’ compensation laws typically do not differentiate between a worker who is injured on-site at the employer’s facility or office, and those who are injured while working elsewhere. Consequently, it is important for employers to recognize that an injury could arise out of employment for a telecommuter when the risk results from the nature of the telecommuter’s work or when it originates from some risk to which the environment exposes the worker. Even though the employer may have no control over this environment, if a telecommuter suffers an injury while carrying out a task that is related to her employment, her subsequent claim could be found to be compensable.
Unfortunately, there is little guidance to assist an employer in determining whether a telecommuter’s injury occurred while working, or while engaged in an unrelated personal activity conducted at home. In fact, with telecommuter injuries there are often issues involving notice, the lack of impartial witnesses, concerns regarding the safety of the workplace and injuries that occur during travel from the employee’s home to customer sites, along with deviation lunch break and non-work-related activities performed during working hours. For example, if the employer allows and approves for employees to take work home with them, or even allows employees to take longer lunches and other time off to make up for the need to complete work at home, a worker who is injured at home while planning to do work that evening, could have a compensable claim. This is because there may have been an “implied requirement” for the employee to complete some work at home.
ALJ decisions have touched upon the issue of injured telecommuters. For example, an employee that was assigned to work from her home claimed that she injured herself at home while lifting a printer, as she was packing it as part of an agreement to relocate her to an office in another state. However, “plan of the day” e-mails from her supervisor instructed her what her duties would be for that day, but did not instruct her to pack the printer. The Judge found that the Claimant’s testimony about how she had been injured was not consistent with her work duties. Absent such an email, it is likely that her claim would have been compensable.
Consequently, employers would be wise to provide clear and detailed information to the telecommuting employee via e-mail or fax to send assignments and to establish the scope of work that is to be performed at home. In other words, maintaining control over the telecommuting employee is fundamental. This can be done by obtaining a written telework or telecommuting agreements with a designated workspace in the home of each telecommuting employee. These agreements should also document when travel is required, set fixed hours for breaks and note that the panel of physicians has been provided to the telecommuting employee along with an explanation regarding the reporting of such injuries. Taking these pre-emptive steps are vital to ensure that only true work related injuries remain compensable.
*Source: “Teleworking and Workers’ Compensation” by the Honorable Melodie Belcher and Ms. Kimberly Scott – Workers’ Compensation Law Institute 2013.*