Date: March 2020
Working from home, also known as telecommuting, is one solution to maintain work flow during the COVID-19 pandemic. Employers should consider potential exposures arising out of telecommuting and how to mitigate them when developing a policy allowing employees to work from home.
This article does not identify all of the issues of telecommuting, but it is a starting point.
Safety of Employees
Regardless of where employees perform services for the employer, the employer is responsible for their safety and compliance with occupational safety and health law.
One of the risks of working from home is the employer’s lack of control of the work environment. There may be items in walkways and on stairs between the home office and areas accessed during the work day, electrical wiring may not be up to code, or the smoke alarm or carbon monoxide detector may be disabled or nonexistent.
Workers’ compensation law tends to look at the injuries incurred while working at home as an extension of the workplace. Several questions are asked when an employee is injured while working off site to determine whether workers’ compensation benefits apply:
- Did the injury take place in a location the employer authorized and would expect the individual to be working?
- Can it be proven that the individual was performing employer-authorized work duties when he or she sustained the injury or illness?
- Did the injury take place during appointed work hours?
- Was the employee acting in a negligent manner or performing unexpected job tasks?
- Was the employee attending to work matters that were approved, or was he or she injured while engaging in personal, nonwork approved activities?
A Minnesota Workers’ Compensation Court of Appeals opinion1 found that the “personal comfort doctrine” applied to an employee’s injury.
The “personal comfort doctrine” is a rule of workers’ compensation law providing that employees may be covered for injuries that occur while they are taking a restroom break, getting something from the vending machine or doing something else for their own comfort. It is an exception to the general rule that injuries arising out of employment are those incurred while performing duties that further the interests of the employer. The Court of Appeals stated that an employee who works from home is entitled to the same benefits the employees on site enjoy.
Not all injuries in the home will be covered by workers’ compensation. For instance, an employee who slips, falls and injures his or her ankle on an icy deck while running outside to check on the children would not be covered.
During the COVID-19 pandemic, employers may ask employees to self-report items related to the physical environment on a checklist of safety items (See Safety Self-audit for Telecommuters). Such a safety survey could be required in the telecommuting policy or agreement with the employee.
MCIT’s pamphlet “Your Guide to a Comfortable Workstation” can be provided to telecommuters to review their home workstations and make adjustments as necessary to provide supported and comfortable working positions. Employers may request these pamphlets by contacting MCIT at firstname.lastname@example.org or 1.866.547.6516.
Telecommuting Liability Issues
One of the issues to be aware of is the Fair Labor Standards Act (FLSA) and its application to nonexempt employees. FLSA provides that nonexempt employees (as defined in the FLSA) may be entitled to time and one half pay for hours worked over 40 per week. When nonexempt employees work from home, overtime hours may be worked and not properly reported for payroll purposes.
The employer should think about how hours worked will be reported or verified for nonexempt employees who work off site. The employer must comply with record keeping requirements of the FLSA. Employers could use software to track when employees sign on to their computers or how long the computer is idle, or put certain parameters in the working agreement or the telecommuting policy that are dependent on the employee’s compliance.
Public entities are also responsible for compliance with the Minnesota Government Data Practices Act (MGDPA) regardless of where their employees perform services or where the data is located. Obligations under the MGDPA relate to data security, records retention and destruction.
The employer should consider whether there is more liability by allowing the data to be created or received at a location other than the workplace. Government data may be more difficult to keep secure when it is located off site. The potential for a data breach may be increased if care is not taken in providing expectations of security in the telecommuting arrangement.
All of the policies that apply at the office apply to the employee who works from home, including acceptable use of member-owned equipment policies, password and e-mail policies, improper use of Internet policies, etc. Both encrypted e-mail and access to a secure website when dealing with nonpublic data are highly recommended.
If the government data the telecommuter is handling is part of a state agency system, it is important that the state’s rules regarding access are followed by the employee at the home office.
Many other considerations relate to data privacy and records retention and destruction. The MCIT Resource “Employee-owned Technology in the Workplace” (MCIT.org/resource/) provides a more complete understanding of this risk.
Employees who work from home should not be treated any differently than others who perform the same services for the employer. Therefore, it is important to have a process for reviewing the effectiveness of telecommuting:
- Are the employer’s priorities and time deadlines being met?
- Is the employee able to work with minimal supervision?
- Is the employee communicating with internal and external clients as expected?
- The employer’s performance management system may need to have additional considerations for those employees who work off site.
A telecommuting policy is recommended and should include certain requirements of a home office, such as space set apart from the regular pathways of the home, up to code electrical wiring, employer-provided equipment (e.g., computer, printer, cell phone) work hours and check-in requirements.
Some employers choose to have a written agreement, in addition to the policy, to allow employees to work from home. Regardless of whether the employer uses an agreement and policy, there should be clear guidelines indicating the expectations from the employee and the responsibilities of both parties in the telecommuting arrangement.
There may be more recommendations for risk management and loss control that could apply to a specific telecommuting situation. Members who have questions should contact their MCIT consultant toll-free at 1.866.547.6516 or contact their county attorney or other legal advisor for any legal advice.