Liability issues lurk in remote work environment

Working from home has become a necessity for a significant percentage of the workforce, but could employers be in for a workers’ compensation surprise in the near future?

While lawyers who specialize in employer responsibilities and workers’ compensation cases can’t necessarily provide concrete answers, there could be liability concerns when it comes to how home office arrangements contribute to work-related musculoskeletal disorders.

In the office, employers have much greater control over work-related ergonomics. Standing work stations, multi-adjustable chairs, arm rests, headsets and ergonomic keyboards are often requested by employees to ward off potential issues.

But what about the employee who has never had the need for a home office and now is in their 10th month working in their spare bedroom, dining room or basement? Are they using an ergonomically correct chair or one from the kitchen table? Are they straining their neck to hold the phone and type at the same time? Is glare on the computer screen leading to poor posture?

“I may have a horrible chair at home and if my employer is asking me to sit for a long period of time, then I’d say, yes, it would probably be covered (by the employers’ responsibility),” said Jeff Harradine, partner and business litigation lawyer at Ward Greenberg Heller & Reidy LLP.

Guidelines by the Occupational Safety and Health Administration (OSHA) don’t address the requirement of the workforce mass to call home the office. The guidelines were written years, and in some cases two decades, ago.

But OSHA rules require employers to ensure the workplace is “free from recognized hazards, including ergonomic hazards,” said Taylor Ventre, a member of the labor and employment team at Harris Beach PLLC. “That duty applies regardless of the location where employees are working.”

There also are Americans with Disabilities Act (ADA) implications. Can an employee with a disability still perform his or her job from home?

“Just because the workforce has shifted to remote doesn’t mean those laws don’t apply,” Ventre said.

The advice from the experts: encourage an open, honest dialogue between employees and employers. Make sure employees aren’t afraid to express concerns about the work conditions or perhaps back or neck pain that has slowly developed over the past several months.

The University of California at San Diego’s faculty and staff website provides detailed information about musculoskeletal disorders (MSDs).

“Early intervention is key to preventing or minimizing injury,” the site says. “MSD’s usually develop gradually. Symptoms such as pain, numbness, and tingling in the upper extremities are often ignored until the condition becomes chronic or permanent injury occurs.”

That’s why Morgan Schlossel, associate at Ward Greenberg, says employees must speak up.

“The most important thing is having that communication between employer and employee,” Schlossel said.

Said Harradine: “Maybe it’s awkward for an employee to say ‘I have this limitation or I have this injury.’ But employers are best served by creating a workplace where employees aren’t afraid to say something. You want to do right by your employee. It’s being a good human but it’s also good for business; happy employees are more productive.”

Under ADA requirements, an employer is required to provide necessary equipment as long as it doesn’t cause “undue hardship” to the employer. Purchase of an adjustable desk in most cases probably wouldn’t be considered a hardship.

“What’s considered an undue hardship during the pandemic is a little different than it was before,” Ventre said.

Alexander Osborne, partner at the workers’ compensation law firm of Connors & Ferris LLP, said there have been very few claims related to work-from-home conditions. Yet.

“I know I’m going to start getting a lot of calls,” Osborne said. “Maybe it’s ‘I’ve been working at home for six months, I went to get the mail because there was mail for work and I slipped and tore my meniscus. Is that workmans’ comp case?’

“There’s no way to insulate the employees the way there is in the office so I wouldn’t be surprised if we hear more that in the next four, five, six months.”

If a compensation/disability case does end up in court, there is no one-size-fits-all set of rules.

“The courts and board would really dive into the facts and circumstances surrounding your pain in the neck,” Ventre said. “You can think of a million scenarios right now. I imagine as more and more people continue to remain at home, case law will likely change.”

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