Are You In or Out?

The COVID-19 pandemic has dramatically altered every facet of our lives, including how we work. The traditional model of commuting to and from a job five days a week has evolved into other variations, such as the now popular “hybrid” work model, which combines remote work with in-person office work. This hybrid model has led many companies to reduce their real estate footprint and provide office “hubs” or “hoteling” for employees instead of permanent offices. As employers try to keep pace with the changing landscape of how and where we work, they must also consider the potential effects these changes will have on workplace injuries.

With home workspaces now the norm, employers must be mindful of the inherent risks associated with employee accountability, accessibility, and productivity. Heightened attention must also be given to safety, wellness, and avoidance of at-home and remote work injuries. When promoting safety, it is important to not only consider the direct consequences like loss of life, serious injury, and potential lawsuits, but also indirect consequences such as interrupted operations; loss of production; rehiring, retaining, and retraining employees; and reduced morale.

The Occupational Safety and Health Administration Act (OSHA) provides that employers have a duty to provide a safe working environment—and that applies to the home office, as well. OSHA specifically requires employers to provide a workplace free from recognized hazards that are causing or likely to cause serious physical harm or death to a company’s employees.

Establishing guidelines for a home office, creating a home safety checklist, defining the employee’s job duties with specific job descriptions, developing a clock-in/clock-out tracking program, and setting expectations around virtual communication, meetings, and status updates are essential in controlling potential claims. To maintain strong productivity, consider a remote work agreement outlining guidelines for the home office environment where employees would acknowledge and execute an amendment to their job description. Best practices would also include a designated work area equipped with a desk, chair, closable door, and proper lighting and electronic equipment.

Formal written policies for remote work are essential, and it is necessary to have employees sign off on these policies and maintain the signed documents in the company’s business records. Employers should also regularly communicate the remote work policies at all company-wide meetings, and within mission statements, newsletters, and bulletins. 

Developing engagement strategies for employee safety, care, and wellness efforts is an effective strategy for improving the culture and behavior of company personnel. A key component toward success is to ensure that employees are actively involved in identifying any safety and health issues. Having employees participate in developing and implementing solutions creates a supportive and inclusive work culture. Remind employees about the importance of stretching their legs and staying active, even as they are working within their own homes. Recommend that employees set an alarm to take regular breaks and perform simple stretches throughout the workday. 

Workers’ compensation coverage is required in almost every state when the business has one or more employees, and this coverage applies to in-office and remote workers. Workers’ compensation insurance generally covers any injury that “arises out of and in the course of employment.” Satisfying this requirement is fact-specific and is the exclusive remedy precluding an employee from filing other actions against the employer. Importantly, the fact that an injury occurs in the course and scope of employment does not automatically result in an award of workers’ compensation benefits.

A thorough investigation is critical to determine whether an injury is compensable and to develop defenses to the potential claim. A key element is assessing the cause of the injury and any contributing factors. Upon notification of an injury, it is prudent to identify the causal origin of the incident in relation to the employment, including time, place, and circumstances of the incident as well as the “who, what, why and where” facts of the incident. Additional components of a thorough investigation include identifying any witnesses and securing their statements; obtaining cell phone records, electronic device or computer records (and metadata); and conducting any necessary onsite inspections.

An employee does not depart from being “actually engaged” in the furtherance of the employer’s business during temporary departures from work activities, which often has been known to fall under the personal comfort doctrine. The courts have generally determined that minor deviations from work, such as getting a drink, administering to the employee’s personal comforts, or inconsequential or innocent departures from furthering the employer’s business are compensable. However, an employee engaging in activity that does not further the business or affairs of the employer is not considered to be in the course or scope of employment.

With the significant impact of COVID-19 on today’s workforce, employers must continue to adapt their risk management policies. Claims professionals should likewise rethink the way they manage and mitigate remote work claims to help avoid litigation. As the hybrid work model continues, employers should remain vigilant in their efforts to encourage a positive work environment and ensure the safety and wellness of all employees, whether they are within the traditional office setting or working from home. Developing best practices for documenting, investigating, and resolving remote claims is an important step in establishing an effective workers’ compensation program that can adapt to the changing workforce.