Workers’ compensation liability and the remote employee

Historically, employees either drove or commuted into work five days a week. As the digital age has advanced, remote work has become a standard practice for many companies in various types of industries.

According to a report by the Bureau of Labor and Statistics published in 2010, nearly 24% of American workers reported doing some or all of their work from home. Due to the continued advances in technology, a 2018 study found that more than 60% of the world’s work force works at least one day a week away from the office location and that almost 50% of all employees work half the week remotely. This means that almost 3.7 million employees work from home at least part time.

Still at risk for work-related injuries

This trend allows employees the flexibility to avoid long commutes, spend more time with family and avoid the geographical limitations that have been minimized by technology over the last few decades. While some people work remotely only a few days each week, others work solely out of a home office. These employees, despite being at home more, are still at risk for work-related injuries. It’s not uncommon for remote employees to suffer injuries within the scope of their employment duties for their employer.

Related: Do you need workers’ comp for telecommuting employees?

The decision to employ a remote workforce can bring enormous benefits to an employer, like attracting top talent and saving on overhead expenses that usually accompany a location-dependent workforce. Increasingly, employers are seeing the value of offering remote work options to employees.

Potential liability

However, employing remote workers also comes with its own set of legal implications, issues and potential liability. While there are benefits both to the employees and employers for this type of work arrangement, remote workplace options must be adopted with care to avoid any legal liability by the employer. Since more companies are allowing employees to work remotely from home, there is certainly an increased potential workers’ compensation risk for employers under a state’s workers’ compensation statute since the employer has very limited to no control over the home premises of its employee. Before an employer ships off employees to a distant home location, it’s essential for employers to clearly understand that “an out of sight employee” is not necessarily “out of mind.”

Remote working also raises many questions, including how to manage remote staffers and who is covered under the Pennsylvania Workers’ Compensation Act. A major question that arises when a remote worker is hurt is whether the injury actually took place within the course and scope of employment. For workers’ compensation insurance benefits to apply, the injury must arise from the job duties. There may be a sudden accident or it may be an injury that manifested itself over time. Either way, it must have occurred during work hours and from an activity related to the job.

Related: Accidents happen: Here’s how technology can help keep remote workers safe

Remote workers often have a more difficult time proving an injury was a result of the job because there is usually less evidence available in these remote work situations. An accident at a business or job site may have witnesses or be caught on security footage. Many telecommuters are home alone while they work, so there is often no one present to corroborate a sudden injury or accident.

Home office approved as secondary work premise?

The Commonwealth Court of Pennsylvania has addressed the issue of whether a worker is eligible for benefits under the Pennsylvania Workers’ Compensation Act if the injury occurs at home. In Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Alston), 900 A.2d 440 (Pa. Cmwlth. 2006), an employee was working from home when she fell down the stairs to her home office and injured her neck.

She was working from her home basement office that day and left her home office to go upstairs to the kitchen to get a drink. She fell while returning to her home office in the basement to answer a ringing telephone. She filed a claim petition seeking benefits under the Pennsylvania Workers’ Compensation Act alleging that she was injured while furthering her employer’s business interests, despite the fact that she had briefly departed from her work duties to attend to her own person comfort.

Related: How risk managers can help develop remote work policies

The employer argued that the claimant was clearly not furthering their business interest by getting a drink and falling down her own stairs at home. In Verizon, the workers’ compensation judge, Workers’ Compensation Appeal Board and the Commonwealth Court disagreed and all found for the injured worker.

The Commonwealth Court reasoned that the employee was authorized by her employer to work from home, she was actually working prior to leaving her home office to get a glass of juice and that she only deviated briefly from her work activities at the time of her injury. The Commonwealth Court focused on the term “injury arising in the course of his employment” to include all injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere.

The Commonwealth Court determined that the home office was an approved “secondary work premise” so claimant was injured in the course and scope of her employment and benefits were awarded.

Minor deviations from work activities may still qualify for benefits

Interestingly, Pennsylvania courts have routinely held that minor deviations from work activities which result in an injury may still qualify for benefits under the Pennsylvania Workers’ Compensation Act. The courts have found that such deviations, including going to the bathroom or getting a quick lunch, are designed to administer to the employee’s personal comfort enabling him or her to perform the job more effectively. This has been referred to as the “personal comfort doctrine” in US Airways v. Workers’ Compensation Appeal Board (Dixon), 764 A.2d 635 (Pa. Cmwlth. 2000).

Companies must ensure to establish clear telecommuting policy, review it with employees so they understand it’s serious and have them sign an acknowledgment of receipt document. A telecommuting policy outlines the obligations of both parties and lets each know what is required and what is expected.

A sound telecommuting policy will include considerations such as:

• Work hours.
• Equipment used.
• Time management.
• Reporting or milestones.
• Designated work area.
• Proof of presence in the work area.

An employer can attempt to enact check-ins, geo-tracking, equipment tracking or other milestone reporting that proves where your employee is working. If they get injured, but have not checked in or equipment is somewhere outside a designated area, an employer may not be responsible for the injury.

Home office guidelines recommended

It’s also critical to establish home office guidelines for remote workers such as an ergonomically correct desk set up with a computer and printer. Employers should also consider, where permitted by law, periodic home office checks to ensure telecommuters’ home offices are safe, to identify hazards and any other issues of concern to prevent potential accidents or injuries from occurring.

It’s important for employers to closely consider, scrutinize and have a plan in place to navigate the practical and legal challenges when employing a remote workforce. It’s evident that employees hurt at home while working for their employers may be eligible for benefits under the Pennsylvania Workers’ Compensation Act. A telecommuter who suffers an injury because of his or her job duties, may have a right to workers’ compensation benefits in Pennsylvania depending upon the unique facts of the remote work place situation.

Related: 7 ways to increase your work-at-home productivity

Zachary M. Rubinich (zrubinich@rawle.com) is a partner in the Philadelphia office of Rawle & Henderson. He defends and counsels a variety of businesses, insurers and third-party administrators against workers’ compensation claims in Pennsylvania.