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
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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
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Reduced commute time
Improved work-life balance
Reduction of stress
Flexible hours
Saves money (i.e. capital costs for facilities)
Average Telecommuter
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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-TrendsU.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
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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
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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
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Utah (2000 case)– Slip and Fall in Driveway while
spreading salt for mail delivery courier
(compensable)
Application to CO law
Incidental to Employment Analysis (quasiemployment)?
Course and Scope/Arising Out of
Employment
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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
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Unwitnessed Accident
Hazards at Home
Credibility of IW
Evidence for ALJ
Personal Comfort
Doctrine/Deviation
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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
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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
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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
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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
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Sean Elliott: sean.elliott@pinnacol.com.
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Pinnacol Assurance
7501 E. Lowry Blvd.
Denver, CO 80230