working from home and working from home and workers’ compensationworkers’ compensation

Sean Elliott

PINNACOL ASSURANCE7501 E. LOWRY BLVD.

Denver, CO | 80230303.361.4986

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A History of Working from Home

Advances in technology allow employees to work from home more easily by “telecommuting” or “working remotely.”

In 2008, 17.2 million Americans were telecommuters at least one day a month1

40% of employers offer telecommuting and 17% of employees telecommute2

1 Nancy W. Vaughn, Telecommuting: The Legal Landscape and Best Practices for Employers, NACUA NOTES (May25, 2010), available at http://counsel.cua.edu/NACUANotes/Telecommuting.cfm

2 Vaughn, supra.

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Benefits to Employees of Working from Home

Reduced commute time Improved work-life balance Reduction of stress Flexible hours Saves money (i.e. capital costs for facilities)

Average Telecommuter

49-year old, college educated, salaried in a management role or professional, earning $58,000 a year2

“White-collar” professionals who are less likely to file a workers’ compensation claim3

Sales managers, engineers, attorneys

42 KATE LISTER & TOM HARNISH, THE STATE OF TELEWORK IN THE U.S.: HOW INDIVIDUALS, BUSINESS AND GOVERNMENT BENEFIT (2011),

available at http://www.workshifting.com/downloads/downloads/Telework-Trends-U.S.pdf.3 Telecommuting and its Impact on Workers Compensation and Safety (Part I), pp. 1-2 (2002), available at http://www.riskvue.com/articles/ww/ww0202.htm.

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Workers’ Compensation Considerations

Independent Contractor Course and scope of employment and “arising out of

employment” Authenticity of Injury Personal Comfort Doctrine/Deviation To and From Work

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INDEPENDENT CONTRACTOR

An agreement with an employer to work from home does not override at-will employment.

Working from home does not mean employee is an independent contractor, employer still controls employee.

However, you can still meet the IC test under Section 8-40-202, C.R.S. if you look at totality of circumstances

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Course and Scope/Arising Out of Employment

Utah (2000 case)– Slip and Fall in Driveway while spreading salt for mail delivery courier (compensable)

Application to CO law Incidental to Employment Analysis (quasi-

employment)?

Course and Scope/Arising Out of Employment

Tennessee (2007 case) – Assault by Neighbor while IW in Kitchen (not compensable)

Application to CO law Neutral Risk Doctrine/Sexual Harassment Case

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Authenticity of Injury

Unwitnessed Accident Hazards at Home Credibility of IW Evidence for ALJ

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Personal Comfort Doctrine/Deviation

Pennsylvania (2006 case) – Falling Down Stairs at Home

Application to CO law Oregon (2011 case) – Trip over Dog on way from

Home to Storage Area (compensable) Application to CO Law Deviation/Personal Comfort – (i.e. doing laundry,

sprinklers)

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Going to and From Home Office

Requirement to go to work one or more day a week

Requirement to go to a meeting at work IW traveling to get supplies at Office Depot

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TIPS FOR ALL DEFENSE

Do an onsite evaluation of the home office for ergonomic and hazard assessment

Immediate IME to determine causation Check for telecommuting agreement Immediate witness statement from IW

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Work from Home Agreement in Writing

Employers and employees should put work from home agreements in writing.

Agreement should state:

1) Employee is still obligated to follow business rules and codes of conduct;

2) Exactly what work employee is responsible for producing each pay period; and

3) Whether employee is supposed to be on call during certain hours.

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Contact Information

Sean Elliott: sean.elliott@pinnacol.com.

Pinnacol Assurance

7501 E. Lowry Blvd.

Denver, CO 80230