We’re living in a whole new world. As many employees have shifted to a home office and are under stay-at-home orders, there are legal questions about who is responsible for employee health and safety. In many ways, now that most of us are stuck at home working remotely due to the corona virus pandemic, the concept of personal health and safety for employees has come into focus. Some of the answers to the legal questions may surprise you. Employers may even need to explore a new paradigm shift -- there are many new legal ramifications.
The legal issues surrounding work-from-home can be thorny, in fact. As attorney Louis Chodoff from the law firm Ballard Spahr explained to TechRadar.com, employers may now need to have employees send photos of their home office or even send someone out to do an inspection. In the U.S., OSHA (the Occupational Safety and Health Administration) does not require these inspections, but the employer is still ultimately responsible for their workers.
If the employee does not make an effort to create a safe and healthy home office environment, the employers may not be liable -- but this varies by country and by business category.
“Employers are still responsible for the health and safety of their remote employees,” says Chodoff. “It’s just more challenging for the employer because obviously the employee’s home is not a controlled workplace like the office would be. OSHA still holds employers responsible for safe working conditions regardless of the work location."
Legal issues for a home office
That said, employees do share the burden in ensuring their own health and safety. They need to make sure they are working in a safe environment. While an employer might provide healthcare benefits, the employee is really the one who has to arrange their health insurance coverage if not already done so through the employer's HR services.
That was always true even when employees were at the office, at least when it comes to health insurance. As an employer, you do assume certain liabilities for the events that occur at the corporate office, and you may offer discounts on health insurance. From a legal standpoint, employees also have to pay for their own medical billing, find ways to stay healthy (say, walking each day or working out), and promote their own personal safety.
Employers should know that, from a legal standpoint, there is some liability for the actual home office where someone works, although there might be a few sticking points. “The employee may not be able to recover workers’ compensation if the employee created the hazard that caused the injury or the injury was caused by the employee’s own misconduct,” says Chodoff.
Even then, it’s still thorny. What is considered a home office? If an employee is on a laptop in the kitchen and they use a knife to open a FedEx box and make a mistake, it might not be something that’s covered by worker’s comp. The employee was not in the home office.
Another issue is related to homeowner’s insurance. A home office is considered part of the home. Whatever happens -- flooding when a pipe bursts or tripping over a toy and breaking a leg -- would likely be covered by the homeowner and their insurance, not by the company itself.
“Employers can try to protect themselves by requiring the remote employees to show that their homeowner's insurance covers any damage to a company-issued laptop, printer or any other equipment,” says Chodoff. Then there are issues related to family members. If an employee drops a company-owned laptop, the employer would need to arrange for the repair. It’s unclear what happens if a spouse drops the laptop, or if the employee uses an old power strip that is outdated (and causes a fire because the employee was negligent).
How to address the concerns
Attorney and legal expert Charley Moore, the founder and CEO of Rocket Lawyer, tells TechRadar.com that employees may be more liable in some cases, due to their own negligence. “Employees are typically responsible for maintaining any equipment, like desks or printers, that they provide for themselves and are not owned by the company,” he says.
What will ultimately help, he says, is a contract with employees that spells out every detail -- what is covered, what is not covered, and who is responsible for what in the home. “Employees are covered under relevant state laws concerning workers compensation for any injury incurred while performing official work duties at home,” he says. “Employers should include in any telecommuting agreement the expected work hours of its employees, which are typically in line with the expected work hours for employees at their primary business location.”
As with any legal issue, clarity with employees is critical. Both legal experts tell TechRadar.com that it is important to discuss all of these topics with employees and that it should be clear what is expected while employees are “at work,” even in a home office. And, having a signed contract will help with any disputes that arise, detailing who is responsible for company-owned equipment, what happens if the employee is injured, and how the employee is responsible.
One example of how employers could spell this out has to do with where the employee works. Similar to how independent contractors need to specify in their taxes where they actually work by square footage area, an employee might need to show where they work. This could include one area of the house that is meant only for work, meets all safety standards, and is covered by worker’s compensation insurance if anything bad happens there.
However, it should all provide clarity on what is covered and not covered outside of that space. An employer might require, for example, that a company-issued laptop should not leave the workspace during the lockdown phase of the pandemic. If the employee uses it on the sofa at night to watch Netflix, that would not be covered because it wasn’t a work scenario.
“An employer can require that the employee set up a dedicated work area in their home and require that only work can be done in that dedicated work area,” says Chodoff.
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