24/7 work culture stretches Workers' Compensation exposure

The constant electronic pull of the workplace means thousands of employees are working around the clock and outside the traditional workplace. Even though employers may not mandate constant availability, job demands and fear of reprisals pressure workers to live by their smart phone and other communication devices.

Roberto Ceniceros, Senior Editor & Western Bureau Chief, Business Insurance, notes that there is little case law to provide guidance as to employers’ responsibilities for injuries sustained when conducting business via a mobile device, such as when an employee slips and falls when walking using a Blackberry while on vacation or someone who has left work but is driving and talking on the cellphone to finish up work. As such scenarios become more common, the likelihood of claims increase.

Typically, to determine Workers’ Compensation eligibility courts look to see whether workers were in the course and scope of employment at the time of the injury. Ceniceros suggests that in the case of mobile workers scope may become more important than course in determining compensability. He cites the 2007 Tennessee Supreme Court case, Wait v. Travelers Indemnity Co. of Illinois, as one of the few relevant cases.

A woman, employed by the American Cancer Society, worked from home because the organization lacked office space and was brutally attacked while preparing lunch at home and sought Workers’ Comp benefits. While the court ruled the injuries arose while she was in the course of her employment because it occurred in a place where her employer expected her to be, it ruled that it did not occur in the scope of her employment.

Although insurers are expected to aggressively oppose such losses, employers should protect themselves. Speaking at the Risk and Insurance Management Society Inc. convention, Maureen McCarthy, senior vice president of Workers' Compensation claims and managed care at Liberty Mutual said,"Using these mobile devices that are typically provided by the employer is turning out to be something that's a lot more difficult to manage than we ever anticipated.”

Liberty Mutual wants employers to be aware of the downside of providing workers mobile devices and encourage employers to have in place the proper usage agreements for using devices like laptops, smart phones, Blackberries, and other hand-held devices.

According to Michael Liebowitz, Director of Insurance and Risk Management for New York University, the agreement should clearly define scope and course to remove gray areas. Policies should also be developed on the use of mobile devices and risk managers should establish their company’s tolerance for such claims.