Telecommuting is a trend that continues to rise in popularity as technology continues to develop virtual ‘offices.’ With the invention of Skype, instant messaging systems, desktop sharing, and other helpful resources, it’s now just as easy for an employer to communicate with an employee regardless of whether the employee is at a desk at home or in a grey cubicle.
According to the most recent American Community Survey, about two percent of the country’s workforce telecommutes from home. Two percent may not sound like a lot of people, but that translates to 2.8 million people. It’s important to note that out of these 2.8 million, those who are self-employed or volunteering aren’t considered.
Of course, many telecommuters love working from home—not only do they save on gas money and other work-related expenses–even in their pajamas if they want. As a telecommuter myself, I can testify to the fact that working in pajamas is mainly a myth, I, for one, get up and get dressed each morning. You are what you wear, right? In addition to those kinds of luxuries though, I’m sure my dog is appreciative that I can take her out whenever she needs to do her business instead of waiting for me to return home in eight hours.
Similarly to the way most telecommuters are satisfied with working from home, employers often are as well. So much in fact that they may think they’re even cutting down on possible liabilities and costs: such as worker’s compensation claims. However, as it turns out, having telecommuting employees may just present a whole new set of seemingly unfathomable risks.
This is what JCPenney discovered in the summer of 2011.
Mary Sandberg was a custom decorator for the company who regularly telecommuted, even keeping company property like fabric samples in her home. One day, these fabric samples happened to be in garage, so she went to the garage, escorted by her dog.
It’s not uncommon to almost trip over a dog—they often have a bad habit of circling feet like a cat or placing themselves directly in one’s path. What is uncommon though is that this time, Mary tripped over the pup and fractured her wrist.
What’s even more uncommon is that she made a worker’s compensation claim due to the accident.
As one may imagine, the Oregon Worker’s Compensation Board denied the claim, and stated that she wasn’t injured due to something related to her employment. That doesn’t seem unlikely—whenever people think of worker’s compensation claims, they often have images of someone operating a dangerous machine and losing a finger. The idea of someone filing a worker’s compensation claim while working from home isn’t a typical situation, but due to the rise of telecommuting, it could be something that will become more common.
Mary appealed the case, and the appeals court overturned the Compensation Board’s ruling. They cited Oregon law, arguing that in order for a worker’s compensation claim to be awarded, the injury has to “arise out of” an employee’s job duties and that the injury must occur “in the course of” the employee working.
After all, Sandberg was asked to work from home, thereby making her home her office space. Had she tripped and fallen over something in her path while walking in a grey maze of cubicles, she probably would have made a worker’s comp claim and it likely would have been approved without much debate.
Since JCPenneys had asked her to work from home, the Worker’s Compensation Board declared the hazard was a part of her working environment—meaning her dog was the hazard and was a hazard akin to a wet floor mopped by a custodian.
Court documents made the argument that if Sandberg had tripped over a dog while at a customer’s home, her injury would have arisen as a result of her employment. They said the same was true in this scenario since she was carrying out a requirement of her employment.
Sandberg ended up seeing compensation from the claim, and while the issue may have been resolved for her, it wasn’t over for the state of Oregon.
As a result of the claim, the Oregon Worker’s Compensation Division (OWC) even created a new law, “Order K9-01,” which says any injuries related to a dog could be covered by worker’s compensation insurance.
In a press release, a representative from the OWC stated there were likely going to be amendments in the future to include potential ‘hazards’ due to other pets, like cats, rats, birds, and even reptiles. The representative said there were tons of animals they didn’t even consider when the law was created.
He provided a less than pleasant, possible scenario. He stated if an employee had a pet boa constrictor, was in the middle of performing a work related task, and the snake tried to strangle her, she’d probably have a good chance of being awarded worker’s compensation benefits—if she survived.
Apparently Oregon isn’t unfamiliar with worker’s compensation claims of this kind. An employment agency that provided home health care aides experienced a similar situation prior to the law—except this time, the hazard was a pet mouse. The mouse had escaped its cage and ran in front of the aide who was alarmed and he fell down the stairs, breaking his neck. Unlike Sandberg though, the aid’s worker’s comp claim was denied, as the board said the injury didn’t occur because of employment. Their other argument? The mouse never “came home,” so nobody could prove whether it was a pet or a wild animal.
There were other similar cases aside from those dealing with pets. In 2007, the Tennessee Supreme Court saw the case of Wait V. Traveler’s Indemnity Company of Illinois. A telecommuting employee was assaulted by a neighbor while she was fixing lunch and suffered several injuries. The court ruled that since the assault happened while she was working, she was covered. The court almost ruled against her though, stating that since the employer hadn’t given her set work hours or designated specific break times, that it could have happened anytime. However, the court finally decided she was entitled to a break like any other employee. The case ended up changing the worker’s compensation laws of Tennessee to include telecommuters.
Even prior to the popularity of telecommuting, there were liability cases such as one in 1980 when a professor in California slipped on papers at his home while working on a class syllabus. California courts said his home was a ‘second office’ and ruled in his favor.
Now that new laws have been established though, employers have been taking extra caution. Some are asking telecommuters if they have a pet. Similarly to any kind of potential risk an employee presents, employers now want to know about all potential hazards, including furry friends. If the pet is undocumented, the claim could be denied.
As more and more companies begin to create telecommuting positions, there’s going to be a need for more laws related to worker’s comp and liability for telecommuters. This has opened up a ‘Pandora’s Box,’ that not only employers are considering, but so are legislators, citing protection such as Fair Labors Standards Act and the Occupational Safety and Health Act.
OSHA had suggested a little over ten years ago that ‘at-home inspections’ be done for telecommuters to help employers be aware of safety hazards and risks. They quickly dropped the idea due to a public uproar.
There are a few things companies with telecommuters can do to avoid potential liability risks though:
- Screen employees carefully with thorough interviews and background checks, as well as trying to find out about any past lawsuits or worker’s compensation claims.
- Ask about the workspace the telecommuter intends to use as an office so as to help identify any potential hazards or risks. Although this has to be done carefully due to certain laws, site checks can be performed to ensure the workspace is ergonomically safe and safe in general. This can also help avoid claims due to things like carpal tunnel since computers are a staple in telecommuting.
- Establish clear guidelines when it comes to what is expected of the employer as far as tasks and duties.
- Find out how the employee intends to complete the assigned duties and tasks.
- If possible, try to reduce the amount an employee has to travel since an employer is likely to be held responsible if an accident occurs when an employee is traveling on behalf of the employer.
- Educate, inform, and create awareness about injury prevention and safety that’s built around working from home.
- Talk to your insurer about possible liability risks, the pros and cons of using telecommuters, and make sure you’re carrying adequate liability and worker’s compensation insurance.
- Contact the U.S. Department of Labor, review state and local legislation, and specific worker’s compensation laws for the state the company is based in, as well as the states any telecommuters live in.
There’s still a large grey area—if someone chooses to work at home, aren’t they acknowledging the fact they’ll face some risks they wouldn’t face if they worked at an office?
Worker’s compensation insurance is basically founded upon providing protection in case an employee suffered an injury because of something that directly stems from their work. It’s a widely held belief that worker’s compensation claims are awarded to those who otherwise wouldn’t have been injured if they HADN’T been performing the work related task.
For example, if a construction worker falls off a ladder and is injured, there’s a pretty good argument that he probably wouldn’t have been on that ladder in the first place if it weren’t for his job. If someone works from home, is doing a work related task, and is strangled by their pet boa constrictor, the strangling wouldn’t necessarily happen just because the person was doing work. There’s no way to know if the snake would have done the exact same thing at the same time if the person had been off the clock…unless the boa constrictor was just trying to get the employee’s attention and just felt really neglected.
-Desiree Baughman, InsuranceQuotes.org, @DesireeDB
Facebook Comments