Going the Distance

The percentage of employees working remotely has steadily increased over the last 15 years; however, there is no question that COVID-19 sharply accelerated remote employment to unprecedented numbers. According to the U.S. Bureau of Labor Statistics, over one-third of the workforce worked from home because of COVID-19 as of May 2020. Employers and employees quickly adapted to work outside their regular workspace and transitioned to a "new normal," which extended into 2021.

Thankfully, the introduction of vaccines is allowing much of the world to open up, which in turn allows many of us to go back to the traditional work environment. Businesses that depend on occupied business space will benefit as more employees return to their places of work; however, there are employees who prefer to continue working remotely. Recent surveys of company leaders found that a majority of companies plan to allow employees to continue to work remotely in some capacity after the pandemic subsides and understand that this "trend" is no longer a trend; rather, remote employment is here to stay.

As the number of remote employees will continue to rise, it is inevitable that there will be an increasing number of work accidents involving remote employees. This is understandably disconcerting for employers; however, employers and insurers have opportunities to mitigate their risks both before and after an accident takes place.

Establish Comprehensive Company Policies for Remote Employees

If COVID-19 taught us anything, it is that we need to be prepared to evolve. To that point, employers can take this opportunity to be purposeful, proactive, and attentive in crafting risk management policies and procedures for remote employees well before a work accident is claimed. An effective method for employers to reach this goal is to work with their counsel to develop and implement remote employee policies. With respect to multi-state employers, it is important to keep in mind the varied state laws, as well as federal law, when crafting a remote employee policy. Moreover, as each state's law continues to change over time, so too should an employer's company policy for remote employees.

When it comes to the substance of a remote employee work policy, it is important to establish clear guidelines for employers to implement and for employees to understand. Outline what constitutes remote employment, workspace, work furniture and the like. Employers can determine whether they will furnish specific furniture, equipment, and supplies to remote employees in order to minimize risk. Employers should also determine whether they will permit their employees to work from remote workspaces outside their homes, such as shared workspaces. Defining the "workspace" could very well make a difference concerning the compensability of an accident, as claims involving remote employees often involve tripping over objects such as exposed wires or office chairs. However, if such an accident occurs outside the designated workspace, this could work to bar compensability of the claim.

Reducing Risk in a Remote Office Space

Once the employer and employee confirm where the employee intends to work, employers may want to consider requiring the employee take photos, videos, and other documentation to show the “before” remote office setup in order to confirm whether the proposed work environment is appropriate and not prone to accidents. Employers may also want to consider requiring an employee take similar "after" documentation of the workspace after it is set up for review and approval.

Employers can work with their counsel to create checklists for remote employee workspaces in order to avoid overlooking a concern that could result in a work accident. In particular, a makeshift home office space, a lack of proper office equipment, and ergonomic concerns could very well result in work-related trips, falls, or repetitive motion claims. Employers can work with their counsel to determine whether they should issue standard equipment, such as office chairs or desks, to employees in an effort to reduce these risks. Additionally, claims involving allegations of work-related carpal tunnel or cubital tunnel syndrome are common for remote employees because those employees often do not identify the corresponding ergonomic hazards giving rise to these conditions. In light of this risk, employers can create guidelines regarding the use of adaptive and ergonomic equipment in remote workspaces. Employers can provide education for their employees on how to implement these measures in their home offices, including training videos or one-on-one video conferencing to assess an office space. Workplace safety is also critical for remote employees. Employers can work with their counsel to offer "refresher" courses on avoiding workplace accidents, safety tips, and protocols for reporting work accidents.

Creating the Work Bubble

While employers can work with an employee to create a reduced-risk remote workspace, employers can also establish guidelines concerning work hours, flex time, and lunch breaks. Employers can also determine how much flexibility employees may have to handle personal or family obligations, such as remote schooling, walking a family pet, or extracurricular activities for their children. In essence, employers can create a "work bubble" to help clarify whether an accident is related to an employee's work.

Employers may want to consider installing monitoring software to replicate "clock in" and "clock out" data, recorded breaks, or when employees appear to step away from their computers to establish potential defenses against claims. Employers and their counsel can work together to determine whether to implement software to monitor an employee’s keystrokes, document history, web browser activity, sign-in history, video camera footage, and the use of company communication platforms such as email, instant messaging, and text messages on company-issued or company-reimbursed mobile devices to assess the validity of claims. This could be critical in disproving a claim if, for example, an employee alleges a work-related injury involving her computer but keystroke monitoring indicates she was not at her computer at the time the accident took place.

Investigating a Remote Workspace Accident

While employers can take many measures to reduce the risk of accidents, there will inevitably be claims of work-related accidents and injuries in remote workspaces. Due to the pandemic, a significant amount of newly remote employees performed administrative positions, which typically involve less risk than more physically demanding jobs, particularly due to their ability to telecommute. Nonetheless, such employees can, and do, file workers' compensation claims.

On a fundamental level, the best strategy for defending remote workers’ compensation claims is the same as defending claims for accidents and injuries that occur at a traditional work site. This strategy includes immediate reporting, investigation, and documentation measures at the onset of an accident, all of which can prove to be greatly beneficial in determining what, if any, defenses are applicable. Insurers can take recorded statements of the injured worker as soon as possible in order to record a fresh recollection of events. With regard to an accident that occurs in a remote workspace, it is vital to document the location of the accident with photos, videos, and other supporting evidence immediately afterward. For example, if the remote employee works on the main floor of his home but reports falling down a flight of stairs, the employer and insurer can investigate why the employee was traveling on stairs in the first place. Depending on the jurisdiction, it could involve a deviation from employment, which bars compensability of the accident. It could also be beneficial to perform an on-site inspection, just as insurers do in the event of property damage, to assess the validity of the alleged accident.

Conclusion

Forty years ago, it was inconceivable that a computer would sit atop every desk in an office space. Twenty years ago, email was only beginning to change the day-to-day dealings for businesses. Today, we are dealing with yet another monumental shift in our employment landscape: remote employment. As we did in the past, we must acknowledge the shift, work to reduce risk, and prepare for even more changes in the future. With thoughtful, proactive measures, employers can shift and grow into this new world and effectively manage their risks at the same time.