Whether a formal or casual arrangement, telecommuting is becoming increasingly more common. Employees appreciate the convenience and flexibility while employers enjoy a satisfied workforce with improved retention and recruitment. According to the US Department of Labor Bureau of Labor Statistics, 24 percent of employed people did some or all of their work remotely in 2015. This article will address some of the issues for employers to consider in mitigating their risk of workers’ compensation injuries and claims associated with remote employees.
Labor and employment law specialists and human resource management specialists agree that management challenges and legal issues are best addressed by having a comprehensive telecommuting policy in place and requiring telecommuters to enter into an express agreement with the employer. Each state will have its own nuances in its definition, but generally an employee injury or illness is compensable under workers’ compensation if it arises out of and in the course of employment.
Place
The telecommuting policy should define the workplace scope. An employer has little control over the employee’s home office, but there should be a designated work area. Training and assistance related to work area safety, workstation set up, and ergonomics should be available. Is there sufficient lighting and ventilation? Are there exposed extension cords? Are there smoke detectors and fire extinguishers?
Employers are responsible for providing a safe work environment for telecommuters as well as employees who work upon company property. Best practices suggest an employer should request a photo of the workspace for their records. OSHA will not inspect home offices and does not expect employers to inspect home offices of employees, but the absence of a federal regulation does not mean an employer should be defenseless as to an exposure that falls under the jurisdiction of a state workers’ compensation statute.
Working Hours
While flexibility is an attractive feature for the employee working at home, hours and work schedules should be clearly defined and agreed to. This becomes especially important in managing the schedule of the “non-exempt” (i.e. hourly) worker in order to be in compliance with the federal Fair Labor Standards Act (FLSA). The schedule should be in compliance with state laws governing rest and meal break requirements.
Job Duties
The employer should provide, and have the employee acknowledge, a detailed job description to help prevent the employer from becoming responsible for an injury arising from a non-work-related activity.
As telecommuting becomes more prevalent, more cases involving workers’ compensation benefits are being decided. Recently, in the case of Sandberg v. JC Penney Co., Inc., benefits were initially denied by the Oregon Workers’ Compensation Board. The Oregon Court of Appeals, however, reversed the denial and ruled that Ms. Sandberg “was where she was, doing what she was, because of the requirements of her employment.” Ms. Sandberg worked from her home part time as a custom decorator for JC Penney. While carrying samples from her home to her vehicle, she had tripped over her dog and broke her wrist.
An employer’s clear telecommuting policy and agreement with an employee might possibly mitigate the risk and uncertainty of a potential workers’ compensation claim.
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