The way we work is changing rapidly. We are spending so much time with our technology, it's become like a family member... AKA Alexa! But what is all this exposure doing to our brains, our eyes and our bodies?
Two areas of concern come to mind for employers:
1. The potential for workers' compensation claims arising out of work performed at home for the employer.
2. The risk that work from home becomes a reasonable accommodation request
What is the best way to prepare for these scenarios?
Current Work Trends in the Viral Age
There are several trends brewing recently as a result of COVID-19 that are affecting the workplace right now. This includes the presumption of claims for essential workers' exposed to the virus, like public safety and hospital workers, delivery workers and grocery workers. This is an obvious and expected trend.
But what about service workers who primarily use a computer all day; the ones who were sent home to shelter in place? These employees are now at risk for musculoskeletal disorders from postural strain, repetitive tasks and discomfort to other body parts from sitting too long at a poorly designed work area.
Employers face the same potential exposure to work-related injuries regardless of whether employees are working on company premises or at home.
Marsh, an insurer, advises adjustments need to be made for staff working from home to avoid workers' compensation claims. They also state employees may resist returning to work for fear of interacting with other infected employees/clients/customers. That fear may turn to anxiety creating a need for reasonable accommodation as anxiety is a covered disability.
Is Work At Home a Reasonable Accommodation?
Nixon Peabody, a San Francisco law firm recently stated that working from home may have set a precedent. One thing for certain is with employees working at home now, many of them may not want to return to work.
In a brief by Boardman Clark, LLP, they report employees may demand remote work as an accommodation under the ADA. It may be much more difficult to deny this and claim it as an undue hardship, given they have been allowed to do so during the pandemic. Absent proof of an undue hardship, employers may find it difficult to reject these requests.
The point is to prepare now with justification of why you need employees to return to work.
What Should Employers Do?
If a workers' compensation claim arises while employee is working from home, consider the following actions:
1. Make sure your Work@Home policy or guide includes a statement regarding workers' compensation advising employee of their rights under the law and to report concerns in a timely manner.
2. Don't assume responsibility for third party injuries and property damage occurring in the home.
3. Perform a thorough injury investigation consistent with what is in your IIPP and other related policies. Include a remote ergonomic evaluation by a professional ergonomics specialist as part of your investigation to identify root causation of the employee's concerns.
If the condition is a non-occupational injury or medical condition:
1. Conduct the interactive process to determine the best reasonable accommodation based on your ADA policy.
2. Request medical certification from the physician.
3. Conduct a remote ergonomics evaluation to assure selection of the correct equipment and advise of other reasonable accommodations.
Act Quickly to Resolve Employee Concerns
Whether workers' comp or ADA, it is prudent to act quickly to resolve the employee's concerns while working at home. Determine in advance how you will respond to these scenarios; decide what equipment, administrative actions and training you are willing to provide for the employee. If equipment is needed, arrange delivery and set up of the equipment for the employee. Decide in advance if anything purchased for the home can remain in the home or must be returned to the employer, in case of an adverse employment action.
Planning ahead will pay off in the short term by reducing stress for both you and your employees. Using ergonomics strategies to minimize claim and ADA costs should be part of your Work@Home policy.
For more strategies watch this brief silent-slideshow of recent work trends in the age of COVID-19. Leave your comments below.
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