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What Workers’ Compensation Rights Do Remote Workers Have?

‘Remote work’ may seem like a relatively new phenomenon fostered by the current COVID-19 pandemic. However, as far back as 2016, around 43% of employed Americans already said they worked remotely at least some of the time –– as reported in a Gallup poll.

Of course, the health crisis has heightened not only the usefulness of remote working, but also the need for more telecommuting opportunities. Their effects are bound to be long-lasting in this respect. Deutsche Bank, a company that once had a few thousand people working from home – now has some 70,000 telecommuters. Executives there have stated that “The whole digital workplace will change forever.” This brings many new factors into account and these include the legal rights covering workers who are injured at home.

What are Common Work Injuries for Remote Workers?

Some of the most common injuries sustained by employees working from home include slips, trips, and falls. Depending on an individual employee’s home office set-up, additional risks could be posed by falling objects from shelves, ankle sprains when running up or down steps, burns from preparing hot drinks, or cuts from broken glass. Fires can also be considered a safety risk for telecommuters, as can inadequate electrical safety and poor home office ergonomics.

To What Extent are Remote Workers Covered?

An injury or illness experienced by a remote worker is generally compensable under workers’ compensation law if it arises out of and in the course of employment. The term ‘arising out of’ refers to the task the employee was carrying out when the accident or injury occurred, while ‘in the course of employment’ refers to the time at which the injury happened.

In order to be considered for compensation, the injury should have occurred during working hours and while the employee was completing a work task. To file a successful claim, the employee must show that they were acting in the interest of the employee when the injury or illness occurred. It is vital to note that the rights an employee can claim are dependent on state law.

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What is an Injured Worker?

Not all states define this term identically. In California (and some other states), an injured worker is someone who has experienced an injury or disease resulting from employment, or who has suffered injuries to artificial limbs, eyeglasses, medical braces, hearing aids, and dentures. Injuries may be either specific or cumulative – that is, they may occur as a result of repetitive physical or mental trauma sustained over a period of time, with a resulting disability or need for treatment.

The definition of stress-related injuries, meanwhile, varies from state to state. Some states specify that for a stress-related work injury to exist, a minimum percentage of the stress experienced by the employee (e.g. 50%) must be attributed to work reasons.

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The Challenges for Seeking Compensation for Stress-Related Injuries

For a stress-related injury to be compensable under a workers’ compensation claim, it must fall into one of the categories stipulated in the Diagnostic and Statistical Manual published by the American Psychiatric Association.

Recognized categories include PTSD, anxiety, depression, and adjustment and dissociative disorders. In addition to proving that their job is responsible for the required percentage of the stress they are under, employees will usually need to prove that they have worked for the employer for at least six months (this does not have to mean continuous work). They will also commonly need to show that the stress has not resulted from an action taken in good faith and in a non-discriminatory manner by the employer.

Employee Numbers and Coverage

States have different laws regarding mandatory coverage. Some set a minimum number of employees (e.g. five or fifteen) before imposing coverage. Others stipulate that companies with even one remote worker have the duty to protect them against work-related accidents and/or injuries. Whether or not compensation covers a particular injury will also depend on the law in the specific jurisdiction.

Differences in State Law

Some states (such as Missouri) do not deem injuries that occur at home to be compensable as a general rule. Owing to the current COVID-19 crisis, however, claims for injuries sustained at home are likely to spike, given the fact that so many workers have been ‘forced’ into a remote working situation. In this state, in order for an injury to be compensable, it must have arisen ‘out of an in the course of his/her employment’. The application of the appropriate law involves a two-step analysis: was the risk related to the employment and is the claimant equally exposed to this risk in non-employment life? In Missouri, then, a worker who falls down a hallway at home while walking from one part of the home to another would likely not be granted compensation because this activity is something they would complete whether or not they were working. Iowa is another state that tends to limit workers compensation to injuries sustained at the employers’ premises. There are, however, exceptionsto the rule, even in the toughest states.

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Factors that Boost the Probability of Compensability

There are many factors that can increase the likelihood of a worker receiving compensation in states with the strictest workers’ compensation laws. These include: an employer specifically directing the employee to work at home, the employer supplying equipment or material required for telecommuting, and the fact that an employee works from home on a typical business day. The COVID-19 pandemic has provided many clear instances of employees specifically being instructed to work from home during lockdown and many employees have had to take home equipment from the workplace to be able to carry out their usual activities at home.

When Work and Personal Activities Coincide

It can be difficult for employees to allege they have a right to workers’ compensation if they were injured while carrying out a strictly non-work-related task. Generally, in states with more employee-friendly workers’ compensation law, employers would still be liable in the case of small detours, since this activity could just as easily have taken place if the employee were at work.

case of Verizon Pennsylvania v Workers’ Compensation Appeal Board (Alston) is relevant. Here, an employee who had walked up a flight of steps to obtain a beverage, experienced an injury when running back down the steps to answer the phone. The Court ruled in favor of the injured workers since the remote working area was an approved “secondary work premise.” Moreover, the employee was injured within the scope of her employment.

What Control do Employers Have over the Employee’s Workspace?

Employers have the responsibility of providing the same safe workspace for home workers as for those at an office. This means that businesses can implement specific practices that will enable them to limit workers’ compensation liability. For instance, they may establish guidelines for the layout and design of a home office, to reduce the likelihood of injury. They may also issue measures that home workers need to follow and even stipulate norms on home office ergonomics. These can cover everything from chair height to the frequency of required breaks. Checks may occur periodically to ensure that no new work risks have arisen. Employers can also instruct employees to remove or amend safety risks such as broken carpeting, ill-placed electrical or charging cords, and radiators/portable heaters located close to flammable material such as paper.

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Risk Evaluation Checklists

Employers may require home-based employees to carry out a risk evaluation of their working space. The aim is to identify potential problems that could pose fall, fire, or slip risks. Workers may have a duty to keep a copy of a formal risk evaluation and to provide another copy to the company. The employer may choose to formally state the activities which are permitted during work hours and delineate additional responsibilities to be complied with at home. They can also choose the location in a home that should be used for work. Employers may decide to undertake a home visit to identify the most productive and least risky spot for a home office. They may ask employees to install task monitoring software that records the employee’s activities throughout the day. Finally, employers may set fixed hours and meal and rest times for home workers. Fixed schedules help establish whether or not an accident or injury occurred during work hours.

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What Information should be Present in a Safety Checklist?

The typical checklist for telecommuters includes stipulations regarding the work site and emergency preparedness. For instance, home workers may be instructed to ensure the workspace is clean and tidy, and that it is well illuminated. This space should have obstruction-free exits and be well ventilated and cooled/heated. The employer may also insist that surge protectors be used for equipment such as computers and printers. They may stipulate where heavy machinery should be located so as to improve stability and reduce the likelihood of accidents. With respect to emergency preparedness, requirements may include the presence of fire extinguishers within the home office space and clear access to emergency telephone numbers. Employers may also choose to take photographs of the workspace and establish a regular time frame for inspections.

Telecommuting is a Privilege

Employers should inform workers that remote working is a privilege rather than a right. This privilege can and should be revoked if the employee is unable to comply with rules regarding safe home office design and stipulated safety protocols. In this case, employers may ask employees to return to the office.

Homeowners’ Insurance

Employers may ask employees to check their home insurance coverage. This will ensure that damage to the home incurred while working from home will be covered. They may request employees for a copy of this documentation and keep it on file.

Remote Workers and Cybersecurity

Employers can establish cybersecurity protocols for remote workers to ensure that client data and other delicate information is kept private. Protocols may prescribe the use of specific software and may stipulate rules with respect to setting and encrypting passwords, and the like. Rules can also be set up regarding the most appropriate ways to discuss work matters involving client data or any other potentially sensitive information.

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Is the Worker an Independent Contractor?

Workers’ compensation does not apply to independent contractors, who are considered responsible for their own safety at work. However, some employees misclassify employees as independent contractors to avoid payroll taxes and workers’ compensation premiums. The classification of a worker as an employee or an independent contractor is not determined by the title given to them by the employer. Rather, it depends on whether or not the worker is truly ‘their own boss’. To be considered such, they should control how their service is provided, who provides it, and how their tasks are accomplished. They should not be subject to the direction or control of the hiring company. Independent contractors also provide bills when they complete a job; that is, they do not receive a regular salary. Additional indications of authentic independence in this sense include provision of one’s own equipment and performance of one or more skilled tasks for more than one company.

There are many requirements involved when it comes to obtaining workers’ compensation. These are related to the status of employees, the length of time in which they have worked at their company, and the way they experienced their injury or illness.

Stress-related injuries can be more challenging to establish, because there are minimum limits imposed and the employee must have a condition that is officially recognized in the Diagnostic and Statistical Manual published by the American Psychiatric Association.

Workers and employers need to communicate in order to establish a safe remote working space. Steps to take to prevent injury include the establishment of rules regarding office layouts and procedures and the carrying out of regular inspections to ensure the home working space continues to be safe.

Employers should stipulate norms regarding working hours, ergonomics, cybersecurity, and other measures that can make the home working experience safer. If necessary, companies should recommend safe equipment and suggest the use of furniture and lighting that can improve office ergonomics.

Resources and further reading

Pie Insurance
SHRM
HG.org
The New Hork Times
BUSINESS NEWS DAILY
BUSINESS INSIDER
DisabilitySecrets
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