Jan 2000

JANUARY MEETING RECAP
"TELECOMMUTING - A WORKERS COMPENSATION EXPOSURE?"
by Lilly Cowan, CPCU

persico.jpg (14274 bytes) Despite the areas first major snowstorm contributing to 12 no-shows, 46 people still turned out for the Philadelphia CPCU Chapter’s January breakfast meeting held at the Doubletree Hotel, Broad & Locust Street, to hear Robert Persico, VP of ESIS Claims Product Management Company, ACE-INA, discuss telecommuting and the employer’s exposure to workers compensation claims and other liability.

"Telecommuting is certainly a trend. It is projected that in the year 2000, 60 percent of Fortune 500 companies will have some form of telecommuting program." Overall, it is a positive development, remarked Mr. Persico. However, employers must be aware of the potential risks, such as how injury claims will be viewed under the Workers’ Compensation laws. Persico said that "so far companies have not been inundated with many claims" arising out of telecommuting. Perhaps this is because people value their arrangement of working at home. Also, it is not easy to distinguish a work-related injury from an ordinary injury at home.

When Is the Telecommuter’s Injury "Work-related?"

According to Persico, the biggest question that must be answered in deciding telecommuting claims is "What is work-related and what is non work-related?" The legal test of a work-related activity is whether it "furthers the benefit of the employer." Since this is such a new area, there is not yet much case law to look to for guidance.

In the past, the majority of WC claims have arisen from incidents during working hours, on the employer’s premises, or at a third party’s premises (sales or delivery staff). Historically, not many compensable injuries occurred in the employee’s home. "The circumstances by which a telecommuter can become injured will vary widely from what we are used to seeing," observed Persico.

When analyzing a questionable claim, Persico asks himself: "If I’m home and get injured, would this be a task that I would do at a regular work place or only at home?" He also looks at it this way: If an accident occurs during a planned part of the workday, then it probably is work-related. But, if it occurs while doing something spontaneous (ex: letting your dog out), it is less likely to be considered work-related. He presented several hypothetical scenarios to illustrate the difficulty of assessing telecommuting injury claims.

Questionable Cases are Hard to Defeat

Persico discussed some of the factors that make it difficult for an employer to defend itself against even a questionable claim of injury by a telecommuting employee.

	Most judicial bodies tend to lean in favor of the injured worker;
	Most incidents in the telecommuter’s home occur without any witnesses;
	WC statutes do not specifically address telecommuting; and
	The precedents that do exist mostly involve travelling Telecommuters.

WC trial courts and appellate courts will create new law as more claims are brought forth.

Strategies for Employers with Telecommuting Programs

It is very important for employers to develop and implement explicit telecommuting policies. To avoid or minimize injury claims. Persico recommended that policies address the following issues:

	Coverage: Be sure that company’s WC coverage applies in all states where it has Telecommuters.
	Working Hours: Define regular work schedule, including time for breaks such as lunch.
	Leaving Premises: Define times that employee will leave home, use personal vehicle pick up/drop off business mail; Telecommuters must notify supervisor whenever they go out on personal business.

	Work Station: Make sure that employee’s work area is ergonomically sound, and meets employer’s regular safety codes; this may involve using safety/loss control personnel to do periodic safety inspections. (Recognizing that some disagree with this position due to privacy concerns, nevertheless, Persico feels this is critical.)
	Travelling Telecommuterss: Supervisor should have schedule in advance of employee locations for period of travel. (Travel between different work sites will likely be considered work-related; in contrast to travel between home and work for non-Telecommuters, which would generally not be viewed as work related.)
	Report: Employees should report all injuries immediately, even if they seem minor.

Other Special Issues

Establish ground rules and procedures for employees who are working at home because of childcare, aging parent, or pet responsibilities.

Part-time workers should conform to same guidelines and policies as full-time workers.

Benefits of Telecommuting

Although there are obstacles and problems, Persico also pointed out some positive benefits of this employment trend.

	Transition back to work is easier for Telecommuters who are injured since most likely they are already in a "light duty" situation;
	Hours can be more flexible so that a recovering worker can get rest breaks.
	Employers should consider putting non Telecommuters into telecommuting status, as interim way to transition to regular work (assumes minimum 3 month recovery period)

Telecommuting programs can be productive and rewarding for both parties, concluded Persico. Employers who enter into these arrangements, however, need to be aware of and plan for the perils. A lively question and answer session followed.