• Justin Hein

Workers Compensation Covers Telecommuting

Workers compensation applies to injuries and illness "arising out of and in the course of employment," regardless of the location the injury occurs. So, make sure you document expectations for your workers while they telecommute.

With the onset of the present coronavirus outbreak and resulting shelter-in-place orders impacting employers and employees, telecommuting has become the de facto option for continuing operations. And with California having no explicit statutory requirements for implementation of telecommuting or work-at-home policies, it can be quite simple to implement.

However, employers need to be wary that mindless implementation could give rise to potential exposure in a myriad of ways. One of the most overlooked places is workers compensation.

Workers Compensation Extends to Work-at-Home

Injuries that arise out of the job and in the course of the job are compensable under the workers' compensation system, regardless of location. “Arising out of” refers to what the employee was doing at the time of the injury, and “in the course of” refers to when the injury happened. To successfully claim workers’ compensation benefits, the employee must show that he or she was acting in the interest of the employer at the time the injury occurred.

Courts have found that an employer’s lack of control over the conditions of an employee’s home-based work premises is irrelevant. When an employee’s home is also an employee’s work premises, it is often interpreted that the hazards an employee encounters when performing work at home are also hazards of his or her employment. Employers are responsible for providing the same safe work environment for telecommuters as for employees who work on company property.

This means that suggesting to an employee to fire-up their at-home Internet or wifi and log on through a laptop or other wireless device is not the extent of an employer's responsibilities.

Best Practices for Implementing Telecommuting

First and foremost, the employer should contact their attorney and insurance carrier to inform them of the plan to implement a work-at-home policy for its employees. Even if already implemented--due to the exigent circumstances--circling back with the professionals is always a good idea. Beyond workers compensation, there are also other considerations--e.g. time tracking, meal and rest breaks, overtime, reimbursement for business expenses (e.g. Internet, cell phone, printing, postage, fax machine line, etc.)--that need to be reviewed and addressed.

Thereafter, the employer needs to implement a policy/agreement with the employee. This can be implemented in a new version of the employee handbook, revised job description, or through just a separate, telecommuting policy agreement. Whichever direction is chosen, ensure that the employee signs a notice and acknowledgement of the new policy/agreement.

The employer also needs to establish minimum expectations for a home office. This includes a designated space, appropriate seating, lighting, temperature control, sound cancellation, and restroom access. Additional consideration must be given to workstation setup, unique equipment installation, as well as safety measures, including ergonomics.

The employer will also want to review and reiterated confidentiality and security requirements for employment. This is especially the case in situations whereby the employee will have access to personal identification or personal health care information of customers, vendors, and employees.

Finally, set a fixed schedule for "workplace hours." This will be necessary for non-exempt employees, in order to establish parameters for work hours, overtime, as well as meal and rest periods for telecommuters. But doing so can also help establish whether an injury was “in the course of” employment for even exempt employees.

Keep in Mind - Do Not Discriminate

Given the present exigent circumstances, employers are scrambling to reconfigure their work to permit almost everyone to telecommute. However, it is important that employees recall their recent history whereby employees may have requested to telecommute as a reasonable accommodation but were denied. If similarly-situated employees are not being permitted to work remotely, how was the prior denial justified?

Furthermore, there may, legitimately, be employees who wish to take advantage of a remote work arrangement, but whose job duties make it prohibitive. While job functions can serve as a reason for limiting remote work opportunities, it’s important to ensure that discrimination on the basis of race, sex, religion or any other protected class doesn’t play a role in any denials. Employees who work remotely should receive the same opportunities for advancement and professional development as their in-office counterparts.

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