By Meghan Delaney and Daniel O'Brien

Law360 (December 10, 2020, 11:16 AM EST )

Meghan Delaney

Daniel O'Brien

Over the past 15 years, due to advances in technology, more and more employees have been working remotely. The public health response, as a result of the COVID-19 pandemic, has seen an extraordinary increase in those numbers in light of stay-at-home orders, the closure and/or hybrid nature of schools and child care facilities, and employees or family members who may be considered high risk.

As the daily COVID-19 numbers are again surging, a push for employees to return to the office setting will likely be put on hold, and more and more companies will likely encounter at least a portion of their workforce working remotely. In fact, some employers have already announced plans to permit remote work arrangements to continue into 2021 and beyond. 

This seminal shift in work arrangements is here to stay, and employers need to be prepared to address various issues that arise with such work arrangements. The legal implications of working remotely can include any number of federal and/or state regulatory laws, including workplace safety.

Workplace safety was traditionally thought of in terms of working conditions contained at the employer's on-site premises. There are specific occupational safety and health regulations in place addressing various risk factors that have been identified over the years in specific sectors and industries, such as construction, agriculture and health care. Physical hazards are often encountered by employees working in the field, and on-the-job injuries are covered by workers' compensation insurance.

For example, falls are common causes of injuries in numerous fields, including construction and health care. Individuals working with machinery are exposed to moving parts, hot surfaces and other hazards presenting the potential to crush, cut or burn operators if not used properly. 

These are hazards and risks that employers have identified and have had the opportunity to put controls in place to limit or eliminate. But what about risks and hazards encountered by those working remotely in a home office?

Allowing employees to work remotely has notable perks for companies, such as improved work-life balance, cutting down on overhead expenses, and the ability to continue working in the current COVID-19 environment. However, employers still need to be mindful of potential workers' compensation concerns.

What happens when an employee working remotely suffers a severe injury after tripping and falling over the family pet while walking to the printer to retrieve the financial summary they just printed prior to the 11 a.m. conference call? 

Although state workers' compensation laws vary, a workplace injury is usually compensable if it occurs within the course and scope or zone of employment. Generally, the zone of employment incudes the physical place of employment and the area thereabout, under control of the employer. The zone of employment is normally easy to define and distinguish with injuries that occur on-site at the employer's premises.

Remote work arrangements present unique circumstances when determining whether an injury occurred within the zone of employment and is therefore compensable. As a general rule, if an employee deviates from performance of their job duties for a personal task and is not furthering the business of the employer, then an injury that occurs during that deviation is usually not considered within the course and scope of employment and, therefore, is not compensable.

Once the employee returns from the deviation to the course of employment, then any injury that occurs after that point is likely covered. This line is fairly bright when dealing with employees who leave the worksite for lunch breaks. However, a trip and fall while working in a home office setting is much more difficult to investigate and document, and therefore analyze its compensability.

Considering these concerns, employers should create specific remote work policies with this is mind. Such policies should define the employee's work hours and require the employee to follow their employer's timekeeping policies and procedures.

Employees that are unable to work from a remote location or need to request time off on any given day should be instructed to follow the employer's procedures for notification of absences. Nonexempt employees should be instructed to take required meal and rest periods and informed that they are relieved of all duties during such periods.

Any company's alcohol and drug policy should also be enforced for employees working remotely. All employees, whether working remotely or on-site, should be precluded from performing their job duties under the influence of any intoxicating substances prohibited by a company alcohol and drug policy.

Employers are advised to also include a specific policy addressing workspace liability requiring employees to maintain a designated workspace that is clean, safe, and free from distractions and safety hazards. Employees should be instructed to immediately report any job-related incident or accident during the employee's agreed-upon working hours, as unwitnessed accidents will be an increased concern.

Employers should require that all employees reporting injuries complete a detailed accident investigation form as soon as practical after any injury. Statistics show that reporting delays result in higher claims cost for valid claims and may negatively affect an employer's exposure because it is difficult to defend a late-reported or unwitnessed accident.

Companies should also spend more time thoroughly investigating claims to determine whether the employee was truly engaged in activities that further their employer's interests at the time of the incident. An employer should have a written policy informing employees that it is not assuming liability for accidents that occur outside of the employee's work hours or designated workspace. The policy should also outline that the employer is not responsible/liable for injuries to any non-business-related visitors or other persons at the home workspace.

Perhaps the biggest concern employers should have, relates to ergonomic issues involved with a remote workforce. Employers, over the past 20 years, have spent countless resources analyzing and correcting exposures to ergonomic hazards in their work environment.

With the advent of remote work, employees will be shifting from ergonomically sound workstations to makeshift offices. More ergonomic injuries are likely due to employees using their laptop on their couch, hunching over to see a screen, poor lighting, and not having arm support to use the keyboard.

A primary concern is that laptops were not designed to be the primary computer for all-day use. Laptops were intended for mobility for meetings and travel. Employers should focus on the importance of proper positioning of seating, workspace and accessories. Remote or virtual assessments may be helpful in ensuring that employees have dedicated remote workspaces that are ergonomically sound.

In addition, employers should train remote employees on identifying the early symptoms of repetitive trauma disorders. Employers should also look at preventative measures like investing in wireless mice and keyboards for employees that are using laptops.

On the flip side of workplace risk, remote work arrangements should at least decrease the amount of workers' compensation claims for COVID-19 cases. In general, communicable diseases like COVID‑19 are not compensable under workers' compensation because people are exposed in a variety of ways, and few jobs have a hazard or risk of getting the diseases.

As with other communicable diseases, an employee that contracts COVID-19 would only have a compensable workers' compensation claim if they can demonstrate that their work environment created a special hazard or risk of contracting the disease in a greater degree or a different manner than the general public. Employees working remotely will have a very difficult time establishing this standard as a home workspace will undoubtedly not be considered a special hazard or risk for contracting COVID-19.

Finally, employers are also advised to review the insurance and subrogation implications of remote work arrangements. Employers should confirm that they have appropriate insurance coverage for all aspects of the remote employee arrangement.

For example, what happens if a client visits an employee's home office and is injured? What happens if work-related damage occurs to an employee's personal property while working remotely or in the alternative, if the employer's property is damaged or stolen at one of their employee's homes? An assumption of risk and waiver of liability may be something to consider for purposes of addressing these types of concerns. 

If a remote employee sustains a work injury that is caused, for example, by a member of the employee's household or the employee's landlord, new questions of third-party liability — aside from those employers are accustomed to dealing with — arise. Employers may be able to seek recovery from an employee's homeowner's policy or the employee's landlord in connection with amounts paid out for workers' compensation claims. In such situations, it's imperative to ensure that subrogation is sought from all proper parties. 

Employers must be cognizant of the issues presented by the new push for remote work arrangements and proactively address them before significant problems arise. Formal remote work policies addressing the specific concerns noted above will be a helpful tool for employers to gain some control over these potential problem areas.

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Meghan Delaney is of counsel and Daniel O'Brien is a partner at Fisher Phillips.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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