Q: We’re getting a rash of workers’ comp claims from our telecommuting employees. When the first claim arrived, we honored it. Word spread through our workforce, and more claims arrived.
We suspect the last two claims are fraudulent. We believe one employee’s injuries resulted from ice-skating accident; another employee showed us the ski-skating employee’s Facebook post, but we weren’t smart enough to screen-shot it before she took it down.
We suspect the other claim resulted from a slip and fall that had nothing to do with work. We don’t have concrete evidence; our suspicion resulted from the employee’s demeanor during a Zoom interview when we questioned him about his injury. We thought we’d hit record on the Zoom meeting but didn’t so all we have are our notes.
One of our managers has said for a while that we need to start drawing the line on work comp claims resulting from off-site activity or we’ll have half our workforce out on claims. He insists we start with these two.
A: Workers’ compensation protection generally covers employee injures if they arise out of and in the course of employment, regardless of where the injury occurred.
Workers’ compensation laws vary by state. Alaska has a no-fault system that compensates injured employees for medical bills, lost wages and permanent impairments as long as they follow the procedures required by Alaska law.
Employers can protect themselves from fraudulent claims by seeking assistance from their workers’ compensation carrier. Given all the regulatory changes that COVID has brought, you may also want to connect with your attorney to draft policies or determine other strategies to manage telecommuting employee workers’ compensation risks.
Employees typically have the burden of proving their injuries were work-related. “Arising out of” refers to what the employee was doing at the time of the injury. “In the course of” refers to when, where and how the injury happened. To successfully claim workers’ compensation benefits, employees need to show they were acting in their employer’s interest when the injury occurred.
Here’s what you need to tell the manager who wants to draw a hard line regarding “off-site activity” claims. Because you allow remote work, your employee’s workplace includes their home, though not the ski-skating pond nor injuries sustained during personal activities.
Further, when employees protest workers’ compensation denials, courts have ruled that an employer’s lack of control over the condition of an employee’s home-based work premise is irrelevant. If an employee’s home is an employee’s work site, the hazards an employee encounters when performing work at home are thus hazards of the employee’s employment.
Further, employers are responsible for providing telecommuters the same safe work environment that they provide employees who work on company property.
Employers hoping to limit workers’ compensation liability for home-based employees may find it helpful to:
-Create a telecommuting policy outlining expectations, that include guidelines for their home offices.
-Provide training, perhaps through videos, concerning ergonomic workstation setup and safety measures. Attorney Rebecca Holdiman Miller recommends that “Employers request that employees send them photos of their workspace to add in its designation and limitation. Keeping the photos on file can help investigate a later telework injury report.” With the employee’s permission, employers may also want to visit the employee’s home offices to help identify and eliminate safety hazards.
“If the employer suspects a fraudulent claim,” says Holdiman Miller, “immediately notify the carrier and consult an attorney to decide on a remedy.”
Finally, I’m concerned that the number of worker comp claims you’re receiving signals the tip of another iceberg — whether that is low morale or hiring practices that don’t screen for integrity. COVID stresses all of us, however, when this many employees file claims, it means something — and you need to ask yourself “what?”