Employees Working from Home Increase Employers’ Liability

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Beth SlagleBy Beth Slagle

Trends in medicine may lead to a growth in nurses and other medical professionals working at least part-time from home.  Statistics reveal that the market for telemedicine patient monitoring grew 237% between 2007 and 2012 and continues to grow, according to a 2013 report from Kalorama Information, a company that researches the health care market.

As advances in technology make it easier for patients to get care from home, they also make it easier for doctors and nurses to work from home, at least part time, giving consultations via phone, Internet and video.  And just as many health care employers have been willing to let some employees in administrative and management positions telecommute, they will likely also support doctors and nurses doing telemedicine consultations from the comforts of their own homes.

But amid discussions about the feasibility and the relative merits and drawbacks of telecommuting, one issue that is often overlooked is the increased workers compensation insurance liability for employers.  Workers compensation laws apply equally to all injuries, whether they are sustained at a business premises or at an at-home worksite. With the attendant increase in telecommuting, in recent years, there has been an increase in the number of workers compensation cases that have been filed for employees who have been hurt while working from home, and often, the employees are granted benefits. A formalized telecommuting policy can help mitigate employer risk for at home worksite injuries.

For example, a Tennessee company had to pay workers compensation benefits to a telecommuting employee who was assaulted by a neighbor who had broken into her home while she was making lunch.  Another example is a 2011 case involving a JC Penney interior designer who received workers compensation after she tripped on her dog on her way out to her garage to look at fabric samples.

Without a well-crafted telecommuting policy setting boundaries for at-home employees, health care employers can find themselves liable to provide workers compensation for any accident that occurs in the employee’s home/workplace.  Here are some tips for health care employers to help them form strong telecommuting policies that limit their liability:

Include a written telecommuting policy in the employee handbook. Before an employee begins working from home, the employer should carefully go over the company’s telecommuting policy and make sure the employee understands the company’s expectations.

Limit the office area. Employer and employee should agree on a separate area of the employee’s home that will be the designated office area. Confining the work area to a specific site in the home will mitigate against claims for injuries that occur in other areas of the house.

Do a site check.  An employer is wise to do regular site checks, when appropriate, to determine if there are known and/or apparent hazards that should be removed or eliminated. Additionally, an employer should verify that the work site is ergonomically correct.

Insist on periodic breaks.  Too much time spent sitting can be a hazard to employees’ health. As a case in point, an obese employee died of a blood clot after working long hours in her home-based office.  The court concluded that although her health and sedentary lifestyle contributed to her death, the blood clot likely formed while she was working overnight to complete a project.

Define specific work hours. An employer and employee should agree on regular and fixed working hours and rest breaks. If there are no established fixed hours, an employee could arguably claim that an injury occurring at any time during the day is a workers compensation claim.

Create a clear job description. The employee’s job description should be detailed so that there is no discrepancy as to what activity is part of the employee’s job and what is not.

Make it clear that telecommuting is a privilege, not a right.  Employers should make it clear that its ability to accommodate telecommuting employees may change at any time.  Employers should also reserve the right to refuse an employee’s request to work at home if the employer feels that the employee’s home does not meet safety requirements.

Notably, while workers compensation laws hold employers responsible for work-related accidents that occur in an employee’s home, the Occupational Safety and Health Act (OSHA) does not hold employers to the same standard. With limited exceptions, OSHA does not expect employers to inspect home offices of employees for purposes of OSHA safety requirements, nor does it hold employers liable for injuries sustained by employees in their home offices.

Many employees are increasingly seeking positions that allow them to work from home at least part-time, and health care employers need to be prepared to accommodate them.  But employers should understand their full responsibilities for providing a safe working environment, and ensure that their telecommuting policies minimize the risk of employee claims.

Beth Slagle is an attorney at Pittsburgh-based law firm Meyer, Unkovic & Scott and is the chair of the firm’s Insurance Coverage Litigation Group.  She can be reached at [email protected]