Remote Employees: Know Where the Pitfalls Are and How to Manage Them
The concept of “working from home” or telecommuting has undergone significant changes in recent years. Thanks to today’s Internet-laden households, video conferencing, and Wifi, businesses within all industries are dramatically changing the way they look at remote employees, recognizing unique work-from-home options that can be beneficial for all parties involved.
However, managing remote employees and the risks associated with ‘working remotely’ has become a hot topic within the world of workers’ comp. This November, as part of the National Workers’ Compensation and Disability Conference & Expo (NWCDC) in Las Vegas, the session, “Remote Employees—A Legal Map to Managing Work From Home” — will offer attendees a chance to understand the issues surrounding this trending topic.
As Paul Meleedy, one of the featured presenters within the session explained, according to statistics released from the US Census, 5.2% of workers in the U.S. worked at home in 2017 — or 8 million people.
“More and more employers are offering telecommuting arrangements to workers. The body of law in jurisdictions is developing as to what makes a work from home injury ‘compensable,’ ” said Meleedy, director, workers’ compensation at Arch Insurance Group.
“Risk managers, human resource professionals and adjusters alike need to stay on top of recent case law to recognize as to when an injury arises out of and in the course and scope of employment at home, and when it does not.
According to Jonathan Barrish, capital partner at Litchfield Cavo and session presenter, the reason that the topic of remote employees has moved to the forefront is because it has become such a trend generally. “As more and more employers accommodate employees who want the flexibility that working remotely brings, they are also experiencing the challenges that arrangement can present,” Barrish said.
One major risk with remote employees is the murkiness regarding when they are and are not in the course of their employment. Another major risk is being unable to control the worksite and therefore being unable to conduct a traditional accident investigation.
Also, according to Meleedy, a deviation from a work trip takes the claimant out of the course of employment prong of compensability. A trip to Starbucks or an injury at an onsite facility was more easily verified in an employer setting.
“Working from home employees and their ‘deviations’ from work are difficult to prove in a telecommuting relationship, but not impossible,” Meleedy said.
Learning From Mistakes
Employers have not fully begun to grapple with the offsetting costs of not having to supply office space to employees.
“Their concentration on reducing office space and costs associated with such, as well as attracting new workers with this perk, does have a cost associated with it in a workers’ compensation setting,” Meleedy said.
Employers need to utilize properly drafted telecommuting agreements for all remote employees. Some employers are not using telecommuting agreements and are not defining the policies and procedures for this arrangement properly.
It is important when managing remote employees to know where the ‘landmines’ are and how to manage them so that there is not an unexpected explosion.” — Jonathan Barrish, capital partner, Litchfield Cavo
As Meleedy explained, far too often human resources may not even be aware of a “work from home” arrangement set up by supervisors and managers. Communication with human resources and the legal department is key.
In addition, employers are not utilizing the vast technical abilities to monitor employees who work from home. Many tools are available to track employees’ time while working on company equipment from home. “This helps to assist in investigating when a person is actually in the course and scope of employment, showing these deviations from work, as well as monitoring their productivity,” Meleedy said.
Kym Knoll, manager of risk and disability at Apria Healthcare and session presenter, said some companies do not offer or consider work from home or telecommuting as a reasonable accommodation due to poor performance. This could result in complaints to the EEOC and increased expenses for workers’ compensation time-loss benefits.
“A surprise to many employers is the requirement under ADA to reimburse the employee for Internet fees/costs, while providing a work from home temporary accommodation,” Knoll said.
Knoll’s focus during the presentation is to address the requirements under the ADA, which includes offering telecommuting as a temporary accommodation, if the accommodation will assist or enable the employee in performing their essential job functions. Knoll plans to offer tools that provide a holistic integrated disability management approach; if your teams are working in silos (ADA, FMLA, and workers’ compensation).
In the fall session at NWCDC at Mandalay Bay, Barrish will be identifying some of the problems that remote employees present from a workers’ compensation perspective, and discussing some ways to manage those problems.
Specifically, during this seminar, risk managers and employers will learn the recent case law in multiple jurisdictions that have developed over the last few years on what is and is not work related when working from home to help guide their policies.
In addition, attendees will learn proper drafting of telecommuting agreements. Key elements that need to be included will be discussed.
The presenters will share tips for making sure that the employee’s work station is safe at home as well as techniques for utilizing information technology to better monitor employees’ time working from home and the procedures for reporting at-home alleged work injuries
“Some problems may not be able to be ‘manageable’ but at least by being aware of the issues you will know what risks you are facing,” Barrish said. “People should attend this session because remote working is a trend that is only going to grow. It is important when managing remote employees to know where the ‘landmines’ are and how to manage them so that there is not an unexpected explosion.” &