Returning To Work 2021: Implementing A Risk Management Strategy With The Employee In Mind

Corinne Spencer and Antwoin Wall detail the importance of implementing a risk management strategy in the new world of work. 

For many, if not all employers, the COVID-19 pandemic has changed the landscape of the workplace. Companies such as Facebook and Twitter have elected to transition to a full “work from home” business model for the long term.  More common, however, is the hybrid business model, where employees are allowed to split their workweek between a traditional office and home office.  

While employers have discovered many advantages to having hybrid workers, such as increased productivity and better work-life balance, these benefits are offset by increased liability exposure, particularly as it relates to potential work-related injuries and looming wage and hour considerations.

The key to limiting risk with regards to both is to involve employees in the creation of a well-defined hybrid policy so that they buy into the arrangement.  The policy should include, but not be limited to, hybrid work agreements, training procedures, as well as home-office and hazard assessments to keep hybrid employees engaged and minimise risk of injury, both physical and mental.

Believe it or not, activities such as eating lunch, visiting the restroom, obtaining a drink of water, or taking a coffee break are generally deemed work-related (whether performed in the office or at home) because they have been found to be necessary and customary as normal working conditions. This is premised on the personal comfort doctrine, which provides that when acts performed during work are necessary for the personal comfort, convenience, or welfare of the employee, the employee will not have to prove that they were performing a job-related activity for an injury to be deemed industrial.  

Accordingly, as part of the hybrid policy, employers should create a safety plan and provide their remote employees with a safety checklist to help them assess the workspace risks and implement the necessary safety measures to control and reduce physical injuries in the home office. The safety plan should also focus on work-related stress, including mental health.  

Admittedly, it is not feasible for employers to physically assess every remote work situation. Therefore, employees must be personally responsible for assessing their current workspaces and following proper safety procedures to reduce the risk of injury or illness while working remotely.  The assessment should identify the broad range of hazards that may be present.  Categories of hazards to consider in the assessment includes those related to ergonomics, the computer workstation, electrical safety, fire safety,  as well as other safety and security measures, such as data security, equipment inventory and anti-virus software.

Specifically, an ideal workspace should have adequate lighting to avoid eye strain, along with an appropriate work surface, such as a desk or table that is set apart from busy areas in the home to allow for optimal focus during work hours. Employees should sit in an adjustable chair and their shoulders should not curve inward or forward.

Further, managing employees’ stress levels and overall mental health is even more important for remote workers.  Employers should take an active interest in the mental health and well-being of their remote employees.  This includes ensuring that employees are not inadvertently overworking.  More significantly, employees should be routinely reminded to always take regular rest breaks, an uninterrupted lunch (if non-exempt) and maintain standard business hours.  Employers should also keep in regular contact with employees and set aside time for casual conversations in place of what on-site employees typically engage in at the office over, say perhaps, a cup of coffee.

Additional safety protocols for employers to consider for their remote workforce includes implementing a worker check-in procedure.  Remote workers can check in at predetermined time intervals.  If within the budget, it is also recommended that employers allocate money to help employees set up their home office space, such as purchasing an ergonomic chair.  Further, employers should have a Communication Plan, which should include an Emergency Response Plan.  Employees should know to notify managers immediately of an emergency, and a staff member should be designated to carry out company-wide communications regarding the emergency.

Aside from work-related injuries, it cannot be emphasised more that employment law related issues must also be constantly considered and monitored closely with hybrid employees. This includes, but is not limited to, the following:

• Wage and hour considerations: There is increased exposure for meal periods and rest break violations. Accurately tracking hours worked is imperative.
• Potential for claims related to failure to reimburse employees’ business expenses: Expenses related to utilities, internet, and phone use should be reimbursed at a reasonable amount.
• Reasonable accommodations; if any, the employer could offer to the Injured remote worker. Employers must be sure to engage in the interactive process.
• Employers must avoid any actions that could be argued as harassing, discriminatory and/or retaliatory.

Ultimately, employee emotion is what drives potential claims, so keeping employee morale up, providing autonomy and trust, and involving hybrid employees in the process is the optimal way to mitigate future risk.

Corinne Spencer is a Senior Employment Counsel and Chair of the Labor and Employment Practice Group at Pearlman, Brown & Wax, LLP. She focuses on counselling clients in employment-related matters including litigation, risk assessment, policy preparation, and training. 

Antwoin Wall is a Senior Associate with PB&W assisting clients in employment matters, including claims of discrimination, harassment, retaliation, wrongful termination, and wage and hour litigation.