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

2 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 month 1 40% of employers offer telecommuting and 17% of employees telecommute 2 1Nancy W. Vaughn, Telecommuting: The Legal Landscape and Best Practices for Employers, NACUA NOTES (May25, 2010), available at 2Vaughn, supra.

3 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 year 2 “White-collar” professionals who are less likely to file a workers’ compensation claim 3 Sales managers, engineers, attorneys 4 2KATE LISTER & TOM HARNISH, THE STATE OF TELEWORK IN THE U.S.: HOW INDIVIDUALS, BUSINESS AND GOVERNMENT BENEFIT (2011), available at U.S.pdf. U.S.pdf 3Telecommuting and its Impact on Workers Compensation and Safety (Part I), pp. 1-2 (2002), available at

5 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

6 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 , C.R.S. if you look at totality of circumstances

7 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 8

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

10 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)

11 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

12 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

13 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.

14 Contact Information Sean Elliott: Pinnacol Assurance 7501 E. Lowry Blvd. Denver, CO 80230