The COVID-19 pandemic is forcing millions of Americans to work at home. The rise in telecommuting is creating potential workers’ compensation issues for employers, insurance carriers, and other interested stakeholders. This is due to the lack of defined case law on injuries that would occur at home and hinders the ability to investigate incidents. Now is the time for interested stakeholders to establish best practices and avoid problems when dealing with workers’ comp injuries at home.
Common Problems with Telework and Work Comp
A personal injury is compensable under most workers’ compensation law when both elements of the test are fulfilled:
Complications to this analysis are numerous. This is especially the case when the employee is injured while performing a “personal comfort” activity such as using a bathroom, taking a smoking break, or taking a coffee break while at home.
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Develop a Telework Agreement
Proactive employers can minimize the myriad of gray areas when it comes to telecommuting and workers’ compensation by implementing work at home policies and putting it in writing. It also requires the employer to strictly apply their policies and follow normal disciplinary procedures on a consistent basis.
The first step in the process is creating a contract when an employee is working at home. This contract should be signed by the employer representative and the employee. Common elements should include:
- Define the Weekly Schedule: This should outline the hours the employee will be “online” and working, and including provisions concerning overtime and how it should be performed. Changes to this schedule should be documented via email, and not necessarily require a new “contract.”
- Define the Location of the Workplace: This will usually be the employee’s regular home address. If the employee wants to work out of a different physical location, an amendment is necessary.
- Performance of Personal Activities: Employers should specifically caution telecommute employees from performing personal activities beyond those they would normally do in an office setting. It should also be noted that employees are expected to follow company vacation and sick leave policies.
- Use of Work Equipment: It is important to define what employer-owned equipment can be used outside the workplace. This is something that should be in place when employee’s have access to laptop computers.
- Data Privacy Issues: It is also important that all employees working remote properly store and dispose of confidential workplace information.
- Workers’ Compensation Statement: All telecommuting and “work at home” agreements should include a statement regarding workers’ compensation. This statement should advise the employee of their protection under workers’ compensation laws, and their responsibility to report all work injuries in a timely manner. A suggested statement can include the following:
You are covered by the state’s Workers’ Compensation laws while in telework status so long as you are acting in the course and scope of your employment. It is your responsibility to report ALL accidents/injuries that occur while you are teleworking to your supervisor immediately, using the company’s standard injury reporting process. <INSERT COMPANY NAME> does not assume responsibility for third-party injuries or property damage that may occur at the telework location. You cannot hold in-person work-related meetings in a telework location in your home; meetings may be conducted in a public setting or via webcam, phone conference, or by other electronic means.
Investigating Work Injuries at Home
Injury investigation needs to balance the interests of the employee’s personal privacy, and that of the employer’s right to make a reasonable inquiry. There is a need to be proactive on these issues and include specific language in any telework agreement to avoid confusion and mitigate the need for unnecessary litigation.
- Require the employee to agree in writing their home-work environment needs to be safe;
- Require the employee to consent to employer representatives to reasonably inspect the home-work environment during the usual and customary business hours; and
- Require the employee to allow and cooperate in any post-injury investigation. This would include receiving immediate medical care if needed, documenting the injury in a complete manner, and allow access to the employer for any reasonable post-injury investigation.
The rise in telework creates numerous problems for all interested stakeholders when it involves workers’ compensation matters. It does require employers to be proactive and prepare written agreements that need to be in place prior to allowing someone to work out of a home office. When done effectively, it can mitigate the numerous hazards the arrangements present, and provide for a process to properly investigate work injuries.
Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.