Last week we established employers might have to allow an employee to telecommute as a reasonable accommodation under the Americans with Disabilities Act (ADA). (Click here if you missed it.) What happens then? It’s the employee’s home and not your premises. Your employee asked to work from home. You are not responsible for that employee’s safety, are you? If your employee is injured isn’t it her own tough luck? Wouldn’t her claim be against her own homeowners’ or renters policy? Could you actually be looking at employee claims for injuries s/he sustains when s/he works from home? Join The Emplawyerologist after the jump to get the scoop on telecommuting and workplace safety… How can you be responsible for safety of workers who are not in the workplace? Remember last week when we talked about the 6th Circuit’s opinion that the definition of “workplace” may be expanding —or at least evolving? Actually courts have already ruled that under the right circumstances, one’s home can be considered a “workplace”. The Occupational Safety and Health Act (OSHA) requires employers to provide employees a safe workplace and the Occupational Safety and Health Administration takes the position that home offices are under its jurisdiction. While Workers’ Compensation laws vary somewhat from state to state, generally if the home is a workplace and if the employee sustains injuries arising out of or in the course of his or her employment, the injury may be compensable under the employer’s workers’ compensation policy. While we are not going to become experts in one post, let’s break this down a bit so that we can get a thumbnail sketch:
First: When is the home a “workplace”? An employee’s home is likely to be his or her workplace, if the employee is working from home and it a) presents a benefit to the employer, and not just a convenience to the employee, b) is subject clear “business use” by the employee, particularly if done on a regular basis, c) is used at the direction of the employer. See, Rogers v. Pacesetter Corp 97 S.W.2d 540 (1998), Tiernan v. Potter 281 A.D.787 (1953). (You can see from these citations, that the issue of working from home, whether or not it was “telecommuting” as we know it today, is not as new as we might have thought.) So, if an injury happens at home, and the home can be the employee’s workplace, let’s move to the next question:
When does the injury “arise out of or occur during the course of employment”? Employers are generally responsible for injuries caused or created by materials, equipment or work processes that they provide or require your employee to use at home (or in any other remote location). For example, where a college professor slips on some papers while preparing a class syllabus, the professor may be entitled to workers’ compensation benefits, particularly if the professor worked regularly from home, thereby turning the home into a workplace. (See County of Los Angeles v. Workers’ Comp Appeals Board 45 Cal. Comp Cas. 253 (1980). Many states construe “arises out of and occurs within the course of employment” liberally in favor of the employee. What if the employee sustains an injury while on a coffee break, getting food or drinks, or going to use the ladies’ or men’s room (also known as a “personal comfort break”) ? In all likelihood, if the employee can show that his or her home is his or her “workplace” and that s/he was doing work up until s/he took that break injuries will be compensable, unless the employee takes a break to do something completely unrelated to work or personal comfort, such as laundry or child care.
If you must ensure that your telecommuting employee has a safe workplace, must you conduct an inspection? According to OSHA, no, and, doing so may open you up to a claim of invasion of privacy. Now here’s where it could get a bit weird: If you require or allow your employee to work from home and your employee is concerned that the home office is unsafe, s/he can, at least theoretically, complain to OSHA. OSHA would then contact you about the issue. If OSHA finds a real hazard, it could prohibit you from having your employee work from home or even impose a fine. Wait a minute. Last week we learned that you might have to allow employees to telecommute as a reasonable accommodation under the ADA. Would you then be violating the ADA? No. Remember, we also learned that the ADA does not require accommodations that pose an undue hardship to employers. Allowing telecommuting in an unsafe home office that you cannot control (and paying hefty fines) is all but certain to be an undue hardship. OK, so how do you reduce your risks? Here are some possibilities:
- Require telecommuting employees to sign a telecommuting agreement, clearly stating the conditions s/he must meet in order to telecommute;
- Ask specific questions about the work environment and see if you can find a way to monitor work activities.
- Consider having your telecommuting employees submit regular safety reports.
- Limit the space within the employee’s home that will constitute the workspace (e.g. a particular room or part of a room).
- Create a telecommuting policy that determines who and what types of positions are generally eligible for telecommuting, and under what conditions and attempt to limit telecommuting to employees who have demonstrated trustworthiness. Include a policy for prompt reporting of any injuries.
- Limit travelling between offices. With email, fax and video conferencing this should not be too difficult.
- As always, engage competent employment counsel to ensure that you have appropriate policies and procedures in place that can minimize your liability.
While it’s not safety-related, here’s a spoof on telecommuting:
Tune in next week when we look at telecommuting and wage and hour issues! Toodeloo!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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