The Labor Dish recently addressed the rapid rise of remote working arrangements amongst U.S. employees. Although “OUT OF SIGHT, BUT NOT OUT OF MIND” touched on the many benefits that come from such arrangements, it also detailed various wage and hour concerns unique to employees working from home, and how employers should begin to navigate these issues. Just getting payroll in order, however, will not solve all the problems facing employers with telecommuting employees. Things are a bit hairier, so to speak, and from house pets to home invaders, there are various health and safety issues employers must consider. The following addresses some of these issues, and also the ways in which remote working arrangements can help employers better “weather the storm,” when it comes to health and safety.
It is common knowledge that employers have a duty to create a safe working environment and may be liable for employee injuries or illnesses that occur “on the clock.” Employers may not be aware, however, that they also must create safe working environments for employees working remotely, and that such employees may be eligible for workers’ compensation benefits for injuries or illnesses that occur while working away from the office, such as in their own homes.
In order to limit safety issues, and potential liability, employers should consider requiring all employees that work remotely to sign an agreement that:
- Describes the employee’s specific job duties;
- Details the employee’s work hours and break periods;
- Requires the employee to designate an area, such as a home office, as his or her specific working environment;
- Explains activities prohibited during work hours, including the supervision of any children under 12 years old, or other children or adults needing assistance;
- Explains that at no time will workers compensation benefits be available to any other third parties that may get injured or become ill in the specified working environment; and
- Outlines the reporting procedures for any job-related injuries or illnesses, which emphasizes that all reports should be made as soon as possible.
These terms of remote working arrangements, some of which may also be useful in avoiding wage and hour pitfalls, help draw clearer lines between when an injury or illness simply occurs in an employee’s home, and when they arise out of and in the course of employment.
Taking these measures, employers may avoid liability in some unusual circumstances. For example, in 2011 an Oregon appeals court found an employer liable for the injuries of an employee who tripped over her dog walking to her own garage, where she regularly worked. The court explained that she was walking to the garage solely to perform a work task, and therefore the injuries arose out of and in the course of her employment. Sandberg v. JC Penney Co., 260 P.3d 495 (Or. App. Ct. 2011). Conversely, a Tennessee court did not find an employer liable for the injuries a remote employee sustained during a third party assault, while she was preparing lunch in her home, where she had an employer-approved office. There, although the injuries occurred during the course of her employment – she was engaged in a permissible break, in a place where her employer reasonably expected her to be, and she was not engaging in prohibited conduct, among other reasons – the court found that the injuries did not arise out of her employment due to the lack of causal connection between her employment and the third party assault. Wait v. Travelers Indem. Co., 240 S.W.3d 220 (Tenn. 2007).
The Occupational Safety and Health Act (“OSHA”), and its corresponding safety and health regulations, also provides that working environments must be safe for employees. Beyond this, OSHA requires that most employers with more than 10 employees properly record certain work-related injuries and illnesses. The regulations make clear that this requirement extends to employees who work from home, “if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” 29. C.F.R. § 1904.5(b)(7). For reference, 29. C.F.R. § 1904.5(b)(7) provides the following examples:
- Work related injuries:
o An employee drops a box of work documents and injures his or her foot.
o An employee’s fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment.
- Non-work related injuries:
o An employee working at home is electrocuted because of faulty home wiring.
o An employee is injured because he or she trips on the family dog while rushing to answer a work phone call. But see, JC Penney Co., 260 P.3d 495 (finding a remote employee eligible for workers compensation benefits, after she tripped on her dog while performing work-related tasks at her home).
As stated above, to ensure OSHA compliance, and to reduce the risk of potential liability, employers should provide telecommuting employees with clear guidelines regarding workplace injuries and illnesses, and also all applicable reporting procedures.
Benefits: Weathering the Storm
Despite the apparent minefield of health and safety risks employers need to navigate when allowing employees to telecommute, these arrangements can also provide benefits in this arena. For example, natural disasters – such as Hurricane Sandy in 2012, which, according to official New York City reports, flooded approximately 23,400 businesses in the city – can be devastating on employers, if an entire workforce is grinded to a halt during recovery efforts. If employees can telecommute, however, then an employer may be better equipped to “weather the storm,” and keep at least some operations afloat. Further, something as simple as a contagious stomach bug can be better contained and not threaten to take out entire collaborative teams, if at least some employees work remotely.