working from home and workers’ compensation

working from home and workers’ compensation Sean Elliott PINNACOL ASSURANCE 7501 E. LOWRY BLVD. Denver, CO | 80230 303.361.4986

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 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 Vaughn, supra.

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 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. 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.

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

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

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

Authenticity of Injury • Unwitnessed Accident • Hazards at Home • Credibility of IW • Evidence for ALJ

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)

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

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

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.

Contact Information • Sean Elliott: sean.elliott@pinnacol.com. • Pinnacol Assurance 7501 E. Lowry Blvd. Denver, CO 80230

working from home and workers’ compensation