Telecommuting and Injured Workers: Who Pays?

Bruce Burk

Sarasota, FL (WorkersCompensation.com) – Telecommuting is on the rise on a global basis. More and more jobs are springing up that can be handled remotely. Moreover, many employees these days have remote access where they can work from home at a job that they normally would work in an office. As a result, workers’ compensation carriers can face difficult decisions with respect to providing benefits for these injured workers on complicated factual scenarios that otherwise would not exist under traditional employment scenarios.

Telecommuting by definition means that a worker is doing work on a remote basis. The threshold question in a telecommuting case is whether the worker is an employee or an independent contractor. Many jobs that allow for remote work are based on an independent contractor status where the worker would not be entitled to workers’ compensation benefits. As is the standard in many states, whether someone is an employee or an independent contractor is determined by looking at the degree to which the employer exerts control over the worker. Even though an employer calls a worker an independent contractor, that is not the determining factor.

Next, the analysis will be whether or not the worker sustained an injury within the course and scope of employment. Telecommuting presents obvious challenges in answering this question. In traditional employment settings, many employees work alongside other employees or under cameras where it can be independently verified whether they had an accident in the course and scope of employment. Those same tools can also be used to confirm whether the worker was doing some kind of work on behalf of the employer at the time of accident. However, with telecommuting or remote work, there is an inevitable mix between the worker’s personal and business life. If workers are performing work at home, they are likely just a few feet away from their kitchens or garages where they could easily go on a deviation from employment. Other issues that come up are the time of the accident and the mechanism of injury. The mechanism of injury is related to equipment; if it is owned or leased by the employer to the employee, then the accident looks more compensable.

One way these issues can be curtailed is to have a telecommuting agreement between the injured worker and the employer. Provisions may include:

  • Fixed hours of employment for the worker. At the very least, the employer/carrier can have some type of verification of the time of the injury and if it occurred during business hours.
  • Requiring the employee to clock out when doing something not related to work; such as eating a meal or taking a break. This can also assist in making decisions about the claim.
  • A policy regarding the use and safety protocols of company equipment. Telecommuting often requires the use of a desktop computer or laptop. The employer should issue safety guidelines with respect to the arrangement of wires and other equipment that could present obvious dangers to the worker.
  • Ergonomic standards. As many carriers know, repetitive trauma injuries can be commonplace even with workers who have largely sedentary jobs. They are even more prevalent with workers who do not have ergonomic workplaces based on standards such as OSHA guidelines.
  • An expectation that the worker has a fixed place of work in a clean area. The fog that comes with telecommuting is that, in theory, the worker’s entire home could be viewed as the employer’s premises even though they may not have any access or control of the area. To curtail this issue, workers should be required to identify specific areas, such as a home office, as the designated work area and any accidents occurring outside that area should be at least presumed to be personal in nature.

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