The Legal Dangers of Working from Home
By Shelby Matsumura
Picture this: Ever since your employees have been working from home, your business has been running smoothly. One day, in the middle of working hours, one of your star employees has left her work desk and walked upstairs to get a glass of juice. Upon receiving an urgent business call, she proceeds to return to her office and, as she descends the stairs, falls and hurts herself. This injury occurred in the comfort of the employee’s home, but does this event pose potential liability for you, as her employer? This hypothetical is based on Verizon Pennsylvania v. Workers’ Compensation Appeals Board (Alston), 900 A.2d 440 (Pa. Cmwlth. 2006). The Verizon court ruled that the employee’s injury was, in fact, compensable under the Workers’ Compensation Act.
Before the pandemic, the ability to work from home wasn’t a standard option offered by most companies. However, with the closing of non-essential businesses and the implementation of stay-at-home orders, millions of Americans are now working remotely due to COVID-19. This period of uncertainty has created a slew of legal concerns for small business owners and their HR teams. As if there currently wasn’t enough on their plates, employers must also be wary of how workers’ compensation may reach past the workplace and into their employees’ homes.
Although most small business owners are probably familiar with workers’ compensation law, it is basically a system of rules designed to pay the expenses of employees who are harmed while performing job-related duties. This system is financed by mandatory employer contributions and can cover lost wages, medical expenses, disability payments, and costs associated with rehabilitation and retraining. The purpose of workers’ compensation laws is to replace traditional personal injury litigation and remove risk for both employee and employer. You can learn more about workers’ compensation laws here.
With many employees working from home these days, it’s crucial for employers to understand how workers’ compensation applies to accidents or injuries that occur in the home. According to the Occupational Safety and Health Administration (OSHA), small business owners are responsible for providing safe work environments for their employees. Additionally, worker’s compensation legislation also requires employers to provide appropriate equipment, rules and instructions where applicable, and reasonably competent supervisors and superintendents for their employees. Lastly, an employer may also be liable for the negligence of an employee, serious employer misconduct, and exceptional work-related risks. These rules apply regardless of whether an employee works from home or in the office as they are afforded the same workers’ compensation benefits. Generally, employers are not responsible for accidents outside the workplace or for those that are not directly born from a job. But if an employee suffers an injury at home that was within the scope of their remote work, they could have a claim against their employer.
For many employees, switching to a work-from-home model has been a challenging shift. Some have children and pets running around in the background of Zoom meetings, others have to share the home office with the other housemates who have found themselves working from home as well, and quite a few have no dedicated working space at all. These unusual and inconvenient circumstances can lead to workers’ compensation claims that may fall in a legal grey area. For example, if an employee is on the clock and gets injured while walking to the kitchen to get a snack, is that within the scope of their work? What if an accident occurs while an employee mows their lawn during a lunch break? These uncertainties will only be further compounded by the fact that the ability to successfully prove and defend against an alleged injury at home will be more challenging, due to less available evidence that could either corroborate or disprove a claim. Prior to the pandemic, if an injury occurred on the employer’s premises, then there may have been witnesses or security footage, whereas these factors are most likely missing in a work-from-home context.
Thus, the outcome of these claims will likely depend almost entirely on the credibility of the claimant and their cohabitants who witnessed the accident. There’s an inherent risk here for the employer, due to no video evidence and the parties potentially having biased perspectives as to how the injury occurred in the home. So, as workers continue to work remotely, it’s likely that such work-from-home claims will slowly increase. In summary, even though workers’ compensation continues to protect employees while they work remotely, it can be unclear to employers as to what constitutes a viable work-from-home claim. The main question to be addressed, though, will be whether the activity during which the employee was injured was an activity that placed the employee in or out of the course of employment.
According to OSHA, injuries that occur in a home office will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than the general home environment or setting. Generally, whether an employee is a stationary or traveling employee can affect the impact of their claim as traveling employees are usually afforded a broader interpretation of what is considered within the course and scope of their employment. As explained by Law.com, there are three basic elements of bringing a valid work- from-home claim. First, an employee who is working remotely from home due to the COVID-19 pandemic will be categorized as a stationary employee, meaning they will receive a more-narrow analysis of what is considered within the course of their employment. Second, case law suggests that if the employee were injured due to an innocent departure from work consistent with the “personal comfort doctrine,” that injury would be compensable. Third, the employee must prove that they were acting in furtherance of the employer’s interests to establish a successful work-from-home injury claim. To clarify, under the “personal comfort doctrine,” an employee who is injured during an inconsequential or innocent departure from work during regular working hours, such as going to the bathroom or grabbing a snack, is still considered to have been injured in furtherance of the employer’s business.
So, in evaluating the female employee’s win in Verizon Pennsylvania v. Workers’ Compensation Appeals Board, where she went to grab a glass of orange juice and fell down the stairs, her claim likely fell under the “personal comfort doctrine,” where her departure from work was innocent and inconsequential enough to still be deemed in furtherance of her employer’s business. However, the other hypothetical of an employee who goes to mow his lawn during a lunch break is unlikely to prevail under this doctrine. Nevertheless, because working from home allows more freedom and flexibility with how each employee spends their day, there will be many scenarios that fall in a grey area, thus confusing employees and employers alike as to what constitutes a valid work-from-home claim.
One of the best ways for employers to address this issue and to protect their employees, even as they work from home, is to specifically plan for employees working remotely in the long run and ensuring they are prepared to do so. The Hartford Financial Services Group, Inc., a United States-based investment and insurance company, shared nine helpful tips for ensuring that your employees avoid any injuries at home and that your business is protected from liability. You can check out a few of these tips below:
Some helpful tips for reducing work from claims
· Ensure that employees have a safe space to work – If your business has any health and safety policies, ask that your employee continue to follow them as they work remotely. Employers can provide their employees with guidelines for a home office; ask them to fill out a work-from-home safety survey, or even do an inspection themselves to ensure the space is ergonomically designed so the employee can work safely. Employers should also look for any potential hazards in their employees’ spaces, such as exposed cords, or lack of emergency equipment, like a fire extinguisher. Employers may even want to consider taking a picture of their employees’ working spaces and checking in every 6 months to re-evaluate its design and safety.
· Consider different insurance policies – If your employee is a homeowner, it might be useful to have them check their homeowner’s insurance coverage and make sure it’s up- to-date. This will ensure that the employee’s home and property will be protected in the event of any damage that occurs during work hours. Have your employees supply any documentation regarding their homeowner’s insurance and keep it on file. Employers may also want to consider getting additional business insurance policies that can help cover workplace injuries, potential lawsuits, or other office and business equipment.
· Prioritize cybersecurity – Ensure that all employee devices are protected from intrusions or online hacking. Hire an IT professional to set up a secure connection from your employee’s home office to your company’s network. A lack of cybersecurity puts your entire company at risk. Inform your staff that only employees should use the company’s equipment.
· Keep up the communication – Regularly checking in on your employees is not only important for morale but can also help employers stay informed on the other factors affecting their employees’ lives. Consider checking in daily, weekly, or on a bi-weekly basis via video calls, so you can see your employee’s work environment and monitor their progress in real time. If you see any potential risks in their office, you can let them know!
· Create a clear telecommuting policy – Setting clear expectations for your employees even as they work from home will be paramount in preventing any misunderstandings. Employers should include specific working hours, with regular breaks, and adhere to any safety procedures. This document would also be a great way to share information regarding employee rights under workers’ compensation. Have your employees sign this policy and keep these documents on file.
As employees continue to work remotely, employers may see a rise in work-from-home injury claims because employers cannot control what each of their employee’s home environments look like. A valid claim would need to be an injury that occurred within the scope of an employee’s course of employment, but the flexibility that naturally comes with remote work can create grey areas of liability under workers’ compensation. Employers should try their best to implement practices and policies that anticipate such claims by thinking proactively and continuing to ensure they are providing their workers with a safe environment. For more information on how employers can address potential work-from-home claims, check out this article from the North Bay Business Journal.
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