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Legal: What to know when working away from work

Jeff Jones
Thursday, Jun 6, 2013

Although it may be a boon to productivity, working away from “work” creates multiple issues. In addition to eliminating the line between employees’ personal and professional lives, there are other hazards. First, employers may be liable for accidents that happen to employees away from the office. Likewise, employers may be liable for accidents caused by employees away from the office. Finally, in some cases employers may need to consider telecommuting as a reasonable accommodation for disabled employees unable to work in the office.

On-the-job injuries away from “work”

Whether in a high-rise or a home basement, injured employees are covered by Tennessee’s Worker’s Compensation Act if the injury “arise[s] out of” and occurs “in the course of” employment. In 2007, the Tennessee Supreme Court addressed the interplay of telecommuting and worker’s compensation in “Wait v. Traveler’s Indemnity Co.” In “Wait,” the plaintiff employee had worked from a home office for approximately four years. One workday while she was preparing lunch in her kitchen, she was brutally assaulted by an acquaintance.

The court held that the injuries did occur in the course of the plaintiff’s employment. Applying the general rule that injuries sustained during personal breaks on work premises during the workday are compensable, the court concluded that the plaintiff was taking a break “at a place where her employer could reasonably expect her to be.” However, the court held that the injuries from the assault did not arise out of the plaintiff’s employment, because the assault was not connected in any way to the employment.

Other courts have found injuries to employees in their home offices to be compensable where there was a clearer connection to work. For example, in “Verizon Pennsylvania Inc. v. Worker’s Compensation Appeal Board,” the employee had left her basement office to get a drink from her kitchen upstairs. Her boss phoned and as she spoke with him, she fell down the stairs. Like the court in “Wait,” the Pennsylvania court found that the injury occurred in the course of the plaintiff’s employment, as she was on a short break during her workday. The court also held that the injury arose out of the employment, because she was furthering the employer’s business at the time she was injured.

While hazards in the home office can result in a compensable worker’s compensation claim, note that the federal Occupational Safety and Health Administration (OSHA) does “not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.”

In sum, even though employers need not (and perhaps should not) inspect “home-based worksites,” employers should offer guidance and assistance to employees in eliminating hazards and setting up safe work spaces.

Injuries caused by employees away from “work”

Of all the ways an employee away from the office can get an employer into trouble, one of the most chilling is by distracted driving. For example, in 2008 a truck driver admitted to looking away from the road to retrieve and answer his cell phone. In the time it took him to do so, he failed to see a line of stopped traffic ahead of him. The resulting collision killed three people and injured numerous others. Just one of the lawsuits resulted in an $18 million verdict against the employer.

Of course, an employee does not have to be driving a tractor-trailer to cause serious damage. For example, back in 2000 an attorney with a prominent East Coast law firm struck and killed a 15-year-old girl while talking to another attorney on her cell phone. The attorney and her firm were named as defendants; the law firm settled for an undisclosed amount, while a jury awarded $2 million against the attorney. The attorney also lost her law license and spent a year in jail.

Employers should adopt policies strictly prohibiting texting while driving and should consider requiring hands-free use for cell phones, or even prohibiting use of cell phones while driving. Although a policy may not shield an employer from all liability in the event of an accident caused by an employee’s distracted driving, it will show that the employer has taken steps to reduce risks. A policy that is clearly communicated and enforced will also show employees that the employer takes the issue seriously, and hopefully result in safer behavior.

Working away from “work” as a reasonable accommodation

Finally, note that employers should consider whether telecommuting is a reasonable accommodation under the Americans with Disabilities Act when a disabled employee is unable to come to the office but can otherwise perform the essential functions of her job. The EEOC takes the position that working from home may be a reasonable accommodation, as do some courts. For example, in “Bixby v. JP Morgan Chase Bank,” the court denied the employer’s motion for summary judgment on the issue of whether working from home would be a reasonable accommodation for a disabled project manager. The court chastised the employer for failing to conduct a fact-specific inquiry, instead dismissing the employee’s request out of hand. Thus, as part of the interactive process to determine whether a disabled employee can be accommodated, employers should consider whether telecommuting is a viable option.

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.


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