As stay-at-home orders are being extended throughout the country, a significant population of the US workforce is and will continue to work remotely.  Because employers cannot actively monitor and supervise their employees, employers are exposed to additional risks of liability.  One significant risk is the potential for employees to sustain accidental injuries while working remotely.

Many states, including Illinois, extend workers’ compensation coverage to employees working remotely.  Using the Illinois Workers’ Compensation Act as an example, in order to obtain compensation, an employee must show, “that he or she has sustained accidental injuries arising out of and in the course of employment.”  Accordingly, the circumstances surrounding the injury will ultimately determine whether the sustained injury is covered under workers’ compensation. 

One consideration is the time at which the injury was sustained.  In a traditional workplace, an employee will arrive at the worksite, work the amount of time specified in the employee handbook or employment contract, take his or her specified breaks, and leave the worksite when the workday is complete.  Although this structure can be replicated remotely, employees who have been forced to work remotely due to COVID-19 may be in a situation that does not allow them to work during normal business hours.  Therefore, workers’ compensation may cover an injury sustained outside of an employee’s standard work hours.  Establishing set hours specifically for your remote employees is one way to limit your exposure to accident liability.

Moreover, the concepts of detour versus frolic illustrate potential liability when an employee engages in activity inconsistent with his or her course of employment while working.  Although both detour and frolic are instances where an employee’s actions while “on the clock” are inconsistent with his or her scope of employment, the difference is the extent in which the employee departs from his or her scope of employment.  The purpose behind the conduct and the location where the injury was sustained are examples of factors considered in determining whether the conduct constitutes a detour or frolic.  Generally, an injury sustained during a detour will still result in workers’ compensation coverage whereas the more extreme frolic determination will not.  Identifying activities that are considered conduct within the course of employment and implementing these activities into employment policies and contracts can provide clarity and limit your risk exposure to employees sustaining injuries while conducting personal matters.

With carefully-drafted employee handbook policies and contracts, employers can mitigate the aforementioned risks as well as other potential liabilities associated with employees working remotely. DUGGAN BERTSCH can assist you with updating employee handbooks, drafting employment contracts, and reviewing your insurance policies to limit your exposure to these risks.

We encourage our clients to consider these potential liabilities as COVID-19 continues to force employees of non-essential businesses to operate remotely.  If you would like to discuss these matters at greater length, please contact either Timothy Epstein tepstein@dugganbertsch.com or Brian Konkel bkonkel@dugganbertsch.com, also available at (312) 263-8600.