February 01, 2012
Telecommuting: Are Employers Liable for Home Office Injuries?

Telecommuting, or telework, is increasingly popular. Employees love it for the comfort and flexibility, employers love it because of lower overhead expenses, and both love it because it keeps cars off the roads and helps protect the environment. But are there any dangers of working at home? Catalina Avalos believes there are, and she discussed them with us.

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First, let's talk OSHA. Avalos is a director in the Fort Lauderdale, Florida, law firm Tripp Scott. She notes that the Occupational Safety and Health Administration styles the offices of employees who work at home as "home-based worksites." If employees work in their own homes, you might expect that their health and safety is not an employer's concern, but OSHA thinks differently. Should employers inspect workers' home offices for safety?

No. In fact, OSHA actually bars such inspections as a potential invasion of privacy. But let's be clear: The agency's function is to prevent illnesses or injuries caused by unsafe work spaces, no matter where they are. Avalos stresses that employees concerned that their home offices are unsafe can make specific complaints to OSHA, which will then contact the employer about the problem. If it determines a real hazard, it has the authority to prohibit the employer from having employees work at home, and/or it can assess a fine to the employer. But if there's an accident that an employee feels is the employer's responsibility, he or she must file a civil lawsuit for damages and/or file a claim for workers' compensation.

How responsible must the employer be? Avalos advises employers to ask all work-at-home employees, even if they're only at home 1 or 2 days a week, to describe what their workspaces are like and whether they have any concerns or special requests. She notes that OSHA requires employees to disclose potential hazards in their home offices, which she believes is a difficult rule to enforce, especially because most employees covet the chance to work at home. But the question is well worth asking. And, she urges, if an employee requests an ergonomic chair, the employer should definitely provide it.

Here, she notes, work at home situations may intersect with needs under the Americans with Disabilities Act, which requires reasonable accommodation. Along the way, Avalos counsels, it's important to specify whose computer and network connection are being used: Do they belong to the employer or the employee? If the employer provides them, there should be a clear policy about whether the employee is allowed to use them for personal activities and contacts.

Can bad things happen? In short, yes. Avalos says, "If the work-at-home employee decides to go downstairs and make a sandwich at lunchtime, and he slips and falls down the stairs, the employer probably isn't liable, nor is the injury covered by workers' comp." The crux of the matter here is that the employee was taking a break rather than performing authorized work. Further, she recommends that employers create a policy for work-at-home individuals that the employer will only be responsible for injuries that happen in the home office.

Avalos stresses that because workers' compensation is state specific, what's covered in one state or accepted by one compensation commission may not be covered or accepted in another state. Says Avalos, "In many instances, there are no absolutely clear answers" that apply across the board." That's why she believes employers' policies are crucial. Not only should your policy restrict responsibility to in-office injuries, but it should also clearly state that it's restricted to times when the employee is performing authorized work.

Remember that the first hurdle an injured employee must overcome is to establish without question that his or her home was, at least for that day, the authorized place to work, and the employer must agree. That's all the more reason to have written policies.

Let's look at case law. In a South Carolina court, workers' compensation covered a marriage and family counselor's injuries when she tripped and fell down several stairs. She didn't have a home office. Instead, the employer had directed her to take home four large, hardback professional books and study them, along with a case file, in preparation for an interview with a family the next morning. She fell attempting to carry the books back downstairs without dropping them, and the court said she'd been injured "in the course of her work."

A Texas employee was injured stepping on a needle in his home office as he moved across the room to answer a phone call from his employer. Again, it happened in the course of his work, the court said. Several state courts have ruled that employees injured getting into or out of their cars while traveling for their jobs deserved workers' comp benefits. And a Utah employee won benefits for a neck injury sustained as he salted an icy driveway in anticipation of delivery of work products to his home.

Finally, Avalos urges employers with nonexempt workers at home to keep accurate time records by having the workers log in and log out electronically. Remember that they may be eligible for overtime pay.

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