The occasional telecommuter and workers' compensation

In the face of historic snowfalls and bitter temperatures, the call to telecommute became a standard emergency-management tool in Massachusetts. "If people can work from home, we encourage them to do so," urged Governor Charlie Baker. Whether it's inclement weather or other one-time events, occasional telecommuting can be a viable alternative.

While many employers take steps to help keep regular teleworkers safe, such as a telecommuting agreement to govern the time, place, and activity parameters of work at home, these often do not apply to the occasional telecommuter. However, from a workers' compensation perspective, occasional telecommuting has many of the same risks as regular telecommuting.

OSHA guidelines for Home-Based Worksites hold employers responsible for the safety of employees in home workspaces, but don't require employers to conduct inspections of those spaces. Furthermore, it notes that employers are not liable for injuries that occur during non-work activities. That puts the onus on the employer to develop policies governing telecommuting work.

In addition to policies for regular telecommuters, it's important for employers to have a written contingency plan for at-home work during disruptions caused by weather or other events. In addition to physical safety, the policy may need to address the safeguarding of information as well.

Some key elements of such a policy include:

• Set clear expectations, noting that the employee has primary responsibility regarding the physical and informational safety of their home
• Provide resources and guidelines on safe working practices from home
• Note that all Workers' Comp policies and procedures apply
• Any injury that occurs while working should be reported immediately

If an injury occurs, compensability boils down to whether the injury "arose out of and in the course of employment," and whether the employee's ability to work from home presented some benefit to the employer and not just a convenience to the worker.

The clearer the guidelines the more protection for the employer. In the end, the facts of each case will determine whether a worker has been injured in an incident arising out of and in the course of employment. While case law is limited, courts have tended to rule in favor of the injured worker when there are doubts about compensability.