Remote Work and Workers’ Compensation - American Society of Employers - Michael Burns

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Remote Work and Workers’ Compensation

worker with broken armAs employers move further into remote work arrangements (full-time, part-time, hybrid) with their employees, a basic understanding of the state’s workers’ compensation law is important.

It’s common knowledge that employees who are injured or become ill “while at work” should be covered by their employer’s workers’ compensation program. However, when Michigan’s workers’ compensation laws were first enacted, these laws were intended to compensate for injuries or illnesses sustained outside of the home and in a place under the control of the employer. Drafters of workers’ compensation laws could not foresee how employees could sustain work-related injuries in an employee’s home.

There are a couple of legal principles used to determine coverage by workers’ compensation laws. It depends on which state the employee works within. Some states require coverage under workers’ compensation if the worker proves the injury was work related regardless of where the injury occurred. So remote workers would be covered if they can prove the injury or illness occurred while they were working, and this could be anywhere if the injury or illness resulted from that work. Other states use an “arising out of and in the course of” employment standard.

Michigan is an ‘arising out of and in the course of employment’ state. Under this principle, if work causes, contributes to, or aggravates a pre-existing “pathology,” the injury or illness would be covered by workers’ compensation insurance. More simply, “the work must be the cause of the disability.” With this coverage definition, a Michigan employer’s workers’ compensation coverage will depend on whether what the employee was doing furthered the employer’s aims or if the employee was acting in the interest of the employer when the injury occurred. This is the “arising out of” part of the above principal.  

Home as a Place of Employment
In days of yore, pre-COVID that is, the question of whether the injury or illness may have arisen out of employment was answered affirmatively if the employee was given authority or approval to work from home. This was often decided as a court or administrative ruling on the facts surrounding the injury. During the COVID pandemic, and when some employees were working from home due to a federal, state, or local shelter in place or quarantine order; an injury or illness resulting from that circumstance could be more easily determined.

Today employers are moving into a time where remote work from an employee’s home or other location is part of everyday employment the home and the workplace becomes “places of employment.” This “other location” reality will be interesting when injuries or illnesses occur at an employee’s vacation home or at a rented home in some other state because the employee who is doing work can do it from anywhere.

Therefore, employers that employ remote work programs will have a much wider scope of what safety and health policies and protections are to be managed. Employers are advised to develop remote work safety and health policies. One basic item an employer can provide is a safety checklist for remote work.

  • Is the floor area clear and free of tripping hazards? Could this include making sure the pet is not a hazard when working?
  • Do file cabinet drawers open into paths of travel?
  • Are there phone, electrical wiring, and other electronic paraphernalia clear and away from the desk area? Are plugs and outlets in good working order with no exposed or damaged wiring?
  • Is the home’s smoke detector working? Many workers are in a basement and a fire upstairs could trap them.
  • Same concern: are radiators and portable space heaters located away from flammable items.
  • Poor lighting, chair and computer set up can cause eye, back and other related injuries.

The above safety concerns compel an employer to seriously consider arranging for a home inspection to confirm and consult with the remote worker that wherever they are, it is safe and suitable for work. It is also recommended employers document these inspections.

To maintain productivity, regular communication should be used to find out about work-related accidents and injuries in a timely way.

It is recommended that employers adopt and maintain a remote work agreement. Among other things, this agreement would address issues such as hours of work and availability during the work hours. This agreement would also state the need to report all personal injuries and the employer’s right to inspect or audit an employee’s workspace to ensure it complies with the employer’s safety standards should they so choose.

 

Additional ASE Resources
Workplace Health & Safety Consulting
– ASE has partnered with Three Sixty Safety to bring workplace safety consulting and training services to ASE members. Three Sixty Safety provides the tools you need to bring safety to the forefront of your organization.  Learn more at https://www.aseonline.org/HR-Consulting/Health-Safety-Consulting.

 

Source: CCH HR Tracker. Daily Document Update Expert Guidance. Workers’ Compensation Claims Involving Remote Workers: What Employers and HR Professionals Need to Know. (3/16/2022) Previous version published by a sister employers association the Employers Association of the Northeast (EANE)

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