28: Workers’ Compensation Claims and Telecommuters

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37% of Americans telecommute at least part of the time.

An actual telecommuter claim:

Mary worked from home selling window treatments, upholstery, bedding and pillows. She essentially worked out of her van and was required to keep current samples with her when going to appointments. She stored excess items in her garage, at her employer’s request. This was convenient for JC Penny because it saved money on storage.

She spent most of her time traveling to and from customer appointments but worked one day a week in a company studio. She also regularly worked at home preparing bids and other paperwork.

On the day of her injury she was walking from her home to her garage to work when she stepped on her dog and fell. She filed a work comp claim and it was denied and that decision was upheld by the work comp board, which is the first stop for any claim dispute, on the basis that it did not arise out of her employment because the risk was not a work related exposure.

The arguments go back and forth over weather or not walking from the house to the garage is work and weather or not the risks surrounding the journey are hazards of her employment.

JC Penny argued that the injury arose out of personal risks, not employment risks. They tried saying she is not a traveling employee and that she was subject to the going and coming rule because the work was to be done in the garage.

After an extensive analysis, the Court of Appeals decided that if the employer requires the worker to provide the work premises then the risks encountered at that premisses, even if outside the employer’s control, are risks that arise out of employment. In this case, the premises was not just the garage, but the house. They overturned the decision and granted the claim.

The Court wrote that “If claimant tripped over a dog and injured herself while meeting with a customer in the customer’s home, her injury would arise out of her employment. The same is true here because the claimant was where she was, doing what she was, because of the requirements of her employment.”

This claim highlights the complications associated with employees who work from home

Claim criteria:

A workers’ compensation claim must arise out of and occur “in the course (or scope) of employment”, to be covered.

“Arise out of” typically means there’s a causal connection between the conditions under which the employee worked and the injury.

And “in the course of employment” has to do with the time, place and circumstances of the accident.

Any risks existing around the house, including animals, are exposures that could lead to work comp claim.

How do you try to limit your exposure?  

Clearly define the workspace and the job responsibilities by creating a telecommuting policy.

Sample policy from Workplace Analytics

Elements of the policy:

  • Define the requirements for the workspace.
  • Establish what the workspace consists
  • Require the employee to keep it clean, clutter free and hazard free.
  • The workspace should be ergonomically sound
  • Type of work and working hours should be defined.

The idea is that by doing this, you’ll have a clear picture of what would be considered a work comp claim.

Conclusion:

In order to limit your exposure to telecommuter work comp claims:

  • Focus on defining the workspace, working hours and the duties to be performed.
  • Make sure the workspace is adequate for the job and that basic housekeeping is done.

About the author, Thomas

I have 20 of years insurance industry experience in C-level management, focusing on all aspects of workers compensation, risk management, loss control, employee benefits, HR, payroll and professional employer organization (“PEO”) operations. Currently, I am the owner and CEO of Humanly HR, and founder and host of SmallBiz Brainiac; a podcast providing employer intelligence to small business owners.

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