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Telework Risks
Blurry Boundary of Work vs. Personal Duties
As mobile technology becomes faster and more connected, fewer workers can say they’ve never dashed off an email from home or made a business call from a personal cell phone. Working from home – or telecommuting – has grown in popularity as it offers convenience and flexibility for the workers while saving his employer overhead costs.
According to Global Workplace Analytics, “telework” has risen by a minimum of 3 percent year-over-year every year since 2006. And the definition of telework is a blurry one. Some telecommuters work exclusively from home, while others do so only part-time, or do the majority of their work from the road. And few employers have set rules to differentiate those circumstances.
Thus, the space where office and home collide is filled with gray area for workers’ compensation claims. What spaces qualify as work spaces? Was the employee truly performing a work-related task at the time of injury, or was it personal? Employers may not be as aware of the liability risk as they should be, and are not taking steps to mitigate it.
“So far, employers haven’t had to take it very seriously,” said Paul Hooper, owner of The Flying Pig Consulting Group, an occupational injury and workers’ compensation consultancy. “OSHA has left it to the court systems to decide, but that’s so variable from state to state.”
“I don’t know if everyone really is aware of the issue, and how it’s becoming bigger every day with the advancement of mobile technology and the ability to bring work home with you,” said Jeffrey Costolnick, senior associate in the workers’ compensation practice at Drew Eckl & Farnham, LLP.
“In the near future, there’s going to have to be some decisions by employers that if you’re going to have telecommuters, these are the guidelines. The clearer those guidelines are, the more protection there is for the employer.” — Paul Hooper, owner, The Flying Pig Consulting Group
OSHA guidelines for Home-Based Worksites, introduced in 2000, state that employers will be held responsible for the safety of employees in home work spaces, but won’t be expected to conduct inspections of those spaces and are not liable for injuries that occur during non-work activities. That puts the onus on the employer to take initiative and devise policies to govern how and when telecommuting employees should be working from home.
“In the near future, there’s going to have to be some decisions by employers that if you’re going to have telecommuters, these are the guidelines. The clearer those guidelines are, the more protection there is for the employer,” said Hooper.
As in all questions of compensability, the matter boils down to whether the injury “arose out of and in the course of employment,” and whether the employee’s ability to work from home presented some benefit to the employer and not just a convenience to the worker, Costolnick said.
To determine benefit to the employer, courts have looked at the extent and regularity of the employee’s work from home, which establishes whether the employee’s home qualifies as a secondary workplace.
“Having work equipment at home used to be a deciding factor. If you had a fax machine or computer at home, you could establish a home office,” Costolnick said. And any supplies that the employer reimburses an employee for – such as a cell phone plan or tablet – are considered. “But today everything is becoming more and more mobile. Everybody has laptops and cell phones and they can work from anywhere.”
Courts have tended to rule in favor of the injured workers when there are doubts about compensability.
In 2007, a Nashville woman filed an injury claim when a neighbor attacked her while she was working at home (Wait v. Travelers Indemnity Company of Illinois). Although the injury did not stem directly from her work duties, the court found that because her employer did not specify work hours for its telecommuters to have a policy restricting personal activities, she could not be ruled ineligible for compensation.
In another 2004 case, a 24-hour on call nurse fell while walking from her car to front door, carrying both a pizza and some work papers (Amedisys Home Health, Inc. v. Howard). Because she was on-call and carrying work-related materials when she fell, her injury was linked to her job and found to be compensable.
It’s up to the employer to draw the line between what counts as a designated work space and time, and what does not. Employee “acts of comfort,” such as using the restroom or getting a drink or snack, typically qualify as activities arising out of and in the course of employment. Accidents that happen during a scheduled break or designated off-work hours, however, do not.
In addition to setting fixed work hours, employers can specify what areas of the home are designated work areas. A separate room for a home office, or a desk in the employee’s living room, for example, would be considered work spaces. The laundry room, the garage or the backyard would not.
Employers can request to inspect the telecommuting employee’s home work space to ensure it meets both work and safety requirements. While few are currently taking that step, it’s one that’s worth considering.
