Telecommuting and Workers' Compensation

Telecommuting has been a flexible work alternative for many employers for some time. However, due to COVID-19, a substantial number of employers have entirely transformed or increased their workforce to work-from-home employees. Many employers are considering extending work from home to a long-term alternative. This raises several issues which employers must consider. Among those considerations is whether injuries sustained in the home environment are covered by workers' compensation insurance, and what can employers do to protect themselves from workers' compensation claims.

As a general rule, employees are covered for injuries that arise out of and occur within the course and scope of their employment. This includes employees who are working remotely if they are injured while performing work related activities. Arising out of refers to what the employee was doing at the time of the injury. Course and scope pertain to the time, place or circumstances of the accident.

If the employee is injured while performing work in a place and at a time that they are expected to be while working, an injury would be covered by workers' compensation. This may include injuries that occur on comfort related breaks from work pursuant to the personal comfort doctrine. This can include taking a brief break during the workday to get a snack, cup of coffee, bathroom break, or other personal convenience tasks. Conversely, an employee who takes a break from work to run a personal errand, i.e., drop off a child to school, or run to the grocery store, likely would not be covered by workers' compensation if injured while performing that activity. Injury during an extended lunch break may or may not be covered depending on whether the employee is required to clock out during their lunch break. The injured employee has the burden of proving that the injury is work-related. Every case needs to be reviewed on a case by case basis to determine whether the claim is work related. If a determination is made that a claim is not work-related, the employee has the option to protest the denial and have a hearing on their claim before an administrative law judge.

There are several steps an employer can take to protect itself from workers' compensation claims. Assistance from an employment or business attorney or employment agency is recommended to properly draft employee policies and guidelines. However, most of these steps can be accomplished with clear guidelines and expectations. Here are some best practice suggestions for managing remote workers to consider.

1. Have a telecommuting policy in place that details expectations and responsibilities of the employer and the employee. Have your employees sign an acknowledgment that they have received and reviewed the policy. Your employment or business attorney or employment agency may be able to assist you in writing your policy.
2. Establish set working hours for your remote employees. This may help establish whether an injury occurred in the course of employment and may help limit wage and hour claims.
3. Have a job description that clearly defines the employee’s scope of work.
4. Establish standards for a home office, such as requiring a designated work area in the home. It may be prudent to have a safety checklist to provide guidance to your employee in creating a safe work environment.
5. Train employees on how to prevent work injuries such as establishing an ergonomically-friendly workstation.
6. Have protocols in place to enforce cybersecurity.
7. Stay in direct contact with your remote employee by establishing regular check-ins and reporting requirements.
8. When an injury is reported, conduct a prompt investigation to determine how the injury occurred, what the employee was doing at the time of the injury, when and where did the injury occur, were there any witnesses to the injury, and did the employee require medical care. Immediately notify your workers' compensation carrier of any reported injury.

With proper policies and guidelines in place, employees working from home can be a beneficial arrangement to both the employer and the employee.