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Human resources, legal, and risk management departments can work together to anticipate issues of potential liability, advised John F. Roskopf, vice president of Aon Group, Inc., speaking at the 38th annual Risk and Insurance Management Society (RIMS)conference in San Francisco. Home office inspections. While OSHA’s official policy statement indicates that the agency will not conduct routine inspections of home offices, Roskopf advises employers to retain the right to inspect home workplaces and to spell that right out in the telecommuting agreement. When a home-based employee sustains a work-related injury, there are special privacy considerations in inspecting the accident site. However, workers’ compensation adjusters have a right to inspect when a large claim is involved, Roskopf said. Security considerations. The employer must consider the security of its data in a home office situation. An early case held that when an employee is handling sensitive client information, there is a legitimate reason for wanting to keep the work and the data on site. Therefore, the employer was justified in denying the right to telecommute to employees handling such information. Employers may be liable for libelous material sent out by employees on company computer equipment or for the disclosure of confidential client information. This holds true whether workers are in the company office or in a home office. Employers should reduce or eliminate employees’ expectation of privacy in their telecommuting computer equipment. Roskopf offered these suggestions: Put employees on notice that you will monitor their performance. Don’t foster an atmosphere that leads employees to believe that passwords are private. Have employees register passwords with the company. Workers’ compensation. Telecommuting employees who suffer work-related injuries in home offices are covered by workers’ compensation. However, Roskopf suggested that because telecommuters tend to be highly motivated employees, they may be reluctant to report injuries. Because the natural social breaks that take place in the employer’s workplace may be absent when the worker is at home, telecommuters may not take enough breaks, leading to an increase ergonomic injuries. Advise telecommuters to report injuries promptly. Property damage and liability. If the employer provides the equipment, the telecommuting agreement should specify who owns the equipment, who is authorized to use it, where and how it may be used, and who insures it. The employee’s homeowner’s policy may or may not cover it. Large employers should insure the equipment themselves to be certain there is coverage, and have the insurance carrier waive the right of subrogation against the employee, Roskopf advised. Collateral damage from the equipment should also be insured. Establish in advance who is responsible for the loss in the event that a computer shorts out and burns the employee’s house down. Homeowner’s policies generally do not include liability coverage. In most jurisdictions, the homeowner is not responsible for slips and falls on a public sidewalk. But a third-party could try to sue the employer on the theory that the home was the workplace of a company employee. At least one court has rejected that argument. ADA accommodation. Roskopf suggested that allowing an employee to telecommute from home may be one way to provide “reasonable accommodation” for employees under the Americans With Disabilities Act. Courts are now tending to expect employers to provide more accommodations to make employment situations work for workers with disabilities. However, he noted that there was a bit of a backlash toward telecommuting now, with some claiming that employers are offering handicapped workers telecommuting jobs in order to hide them from the public. FMLA considerations. While the Family and Medical Leave Act requires that employers provide up to 12 weeks unpaid leave for family or medical issues, employers must make clear that family issues are not a reason for telecommuting. The reason to allow employees to telecommute should be to increase productivity for the benefit of the employer, Roskopf stated. Make it clear that telecommuting is not a substitute for childcare. � 2000, CCH INCORPORATED. All Rights Reserved.

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