Workers’ Compensation and the Teleworker
As telecommuting increases, your obligation to compensate employees for work-related injuries does not decrease.
An increasing number of employees are teleworkers these days.
50 percent of the US workforce holds a job that is compatible with at least partial telework and approximately 20-25 percent of the workforce teleworks at some frequency.
- 80 to 90 percent of the US workforce says they would like to telework at least part time. Two to three days a week seems to be the sweet spot that allows for a balance of concentrative work (at home) and collaborative work (at the office). http://globalworkplaceanalytics.com/telecommuting-statistics .
The research organization also says that companies around the globe are revamping their operations based on the fact that employees are now mobile. Studies repeatedly show they are not at their desk 50-60 percent of the time.
In another survey, an overwhelming majority (86 percent) of teleworkers reported being more productive, with lower stress levels and a better balance between work and home life. Employers that allow telecommuting enjoy increased employee loyalty and lower costs.
Why You Still Need Workers’ Comp
Despite the benefits, telecommuting does have some drawbacks. Although the risk of injury in a home office may be far lower than in factories, mines and mills, teleworkers are as likely as other office workers to suffer from back injuries and repetitive strain problems. They also face other office hazards, such as trip-and-fall accidents, along with risk of injury from fire if they lack an adequate electrical system, or if they don’t have a smoke detector or fire extinguisher nearby.
Your obligation to compensate employees for work-related injuries and illnesses applies no matter where they work. Those who permanently work abroad might have coverage under other laws. In Texas, employers don’t need to carry workers’ comp insurance, but state law limits the liability of an employer who carries it or who self-insures. Nonsubscribers lose several key legal defenses and can face high damage awards if an injured employee can prove in court that the employer was negligent in any way.
Employers cannot simply declare someone an independent contractor to get out of paying workers’ comp or employment taxes. The Internal Revenue Service and state tax authorities have very strict rules for what constitutes an independent contractor. For details, see https://www.irs.gov/pub/irs-pdf/p1779.pdf
Identifying the Risk
Requiring inspections of teleworkers’ home offices seems intrusive, and may actually increase an employer’s liability if an injury later occurs. However, you can require employees to self-certify the safety of their workspaces. The U.S. Office of Personnel Management offers a sample self-certification safety checklist for home-based teleworkers, to be completed by the teleworker, at https://www.telework.gov/federal-community/telework-employees/safety-checklist/.
Many teleworkers also face a risk of repetitive stress injuries (RSIs) due to heavy computer use. Although you have no legal obligation to provide ergonomic training or equipment, it’s a good idea. RSIs can be painful and disabling, causing lost time and productivity. Providing properly fitted equipment and training can protect your valued employees at relatively low cost.
Work-Related or Not?
In a review of the literature conducted for the Virginia Department of Transportation, researcher Ken Winter concluded, “The most common legal liability [associated with telecommuting] seems to stem from workers’ compensation concerns and the fact that it is often unclear precisely when teleworkers are working, when are they preparing to work, and when they have temporarily stopped working.” When a teleworker has an injury at home, how do you determine whether it was work-related or not?
Requiring set hours may be a solution. Injuries that occur in this time period are assumed to be work-related, others are not. However, flexibility is one of the chief benefits of telecommuting. If you don’t want to set up rigid schedules for teleworkers, you can separate a teleworker’s work time from personal time by using some kind of log-in system. Teleworkers can call in to the office when beginning and ending their day, log in to the company’s network, use a logging device on their own computer or manually record their working hours.
It’s also important that employees who work from home have a designated work space and a defined scope of activities. Details like these will help confine potential workers comp injuries to certain functions, places and times.
If a work injury does occur at home, make sure teleworkers know what to do and stress the importance of prompt reporting.
We can help you minimize the risks posed by telecommuting employees. For more information, please contact us.
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In this issue:
Five Ways to Protect Your Firm from Sexual Harassment Claims
Workers’ Compensation and the Teleworker
The Six Types of OSHA Violations and Their Penalties
Four Insurance Policies That May Protect against a Sexual Harassment Claim