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Tele-Work Riskey
Overview
 
A RisKey or Guide to Managing Tele-commuting
 
Tele-commuting is a new arrangement involving work away from the central work site. A few agencies have used this work option for several years. Others are now trying it out for the first time. Reduced fuel consumption is one benefit from telecommuting. It can also reduce highway congestion, vehicle accidents, and wear and tear on roadways, cars, and commuters. Some have found that it reduces sick leave and medical costs. Done right, telecommuting can also increase worker productivity and improve recruitment and retention of valuable employees. The challenge to the manager is to do it right.
 
Tele-commuting means employees doing their work through telephones and computers at a tele-work site on specified days, usually one or two days per week. The tele-work site is an alternate work site that may be the employee’s home or a satellite office (a shared mini-office near the home). The other days of the week are worked at the central work site. The central work site means the traditional office or workplace.
 
According to State Policy 50.050.01, the state allows telecommuting where there are opportunities for improved employee performance, potential agency savings, or reduced mileage to work. If your operating needs and customer needs can be met, your agency may give thought to this work option. Consider employees who already have proven and dependable performance with you. These are also employees who perform tasks well suited to telecommuting without negatively impacting the needs of the work unit, customer service and agency expense.
 
Tele-commuting does have risks for you to manage. Some can be different from the workplace risks to which you are accustomed. Some may be less likely to occur than others. This RisKey is meant to help managers plan ahead to reduce and control those risks. For this guide, we assume that tele-commuters are at a tele-work site for only part of the week. First, this RisKey discusses tele-commuting risks. Then, it suggests ways to manage them. 
 

Identify Employer Risks
 
Risk is an inevitable cost of doing business. The goal is not to avoid all risk or to avoid all loss. The goal is to avoid all needless and wasteful costs of loss. It is every manager’s duty to manage risk. Telecommuting risks are controlled through ordinary good management. But, you have to identify your risks before you can begin to manage them. Here are some of the risks you, as a manager, and your agency could face when business involves work at a tele-work site. Many pertain to a tele-work site that is in the employee’s home.
 
Workers' Compensation Risks: When your people work at a tele-work site, you remain responsible for safety and liable for workers´ compensation just like at the central office. But, a home presents injury risks that do not arise at an office. When employees work at home, the manager must think in new ways.
  • The manager does not control the home-work environment. National data reports that far more injury accidents occur in the home than in the workplace. At home, no custodial staff provides housekeeping or clears away ice and snow from the walks. No maintenance staff controls fire, electrical, or chemical hazards. Your best worker may live in a home that is cluttered with hazards you would never have at work. You cannot inspect and correct hazards. You may provide the work tools such as computers, modems and phones, but how do your employees use them? Do they have an adjustable chair? Do they place their keyboard, monitor and documents at the correct height to limit repetitive motion injuries?
  • There may be an increased exposure to vehicle accidents. Motor vehicle accidents that occur on a telecommute day between the home work site and the central work site may be compensable. It may not matter whether the employee is on paid time. A private trip to the store, the post office or elsewhere may be construed to be a business trip if an injury accident occurs.
  • There will be less you can do if an accident happens. You will know less, know it later, and have fewer ways to help if your employee is injured at home. You will not have people there to give first aid. You will be less likely to learn of the injury as timely as you do at the office. You cannot be certain the employee was working at the time of injury.
State Property Risks:
  • Risk of damage to equipment. If you provide a computer or any other equipment to be used at a home work site, it may be exposed to risks that do not occur in most offices. It may be damaged by pets, children, or spills. Friends of the family may have access to it. A home may not have the level of security or fire prevention your office provides. Statistics show more fires occur in homes than in offices.
  • Risk of damage to records. If the computer is interconnected, your agency´s central records could be exposed to damage from hackers and software viruses. If your employee creates a dial-in script in the software controlling a modem, he or she may be giving a hacker an open door to your LAN or mainframe. Scripts often include computer phone numbers, ID codes, and passwords.
Tort Liability Risks: Your agency can face liability risks from telecommuting that it does not at the central office. These risks include new hazards and weaker defenses.
  • Perceived unequal treatment. If you permit one person to telecommute, you risk a claim of unlawful discrimination from someone to whom you refuse permission without reasonable cause.
  • Third party liability claim caused by tele-commuter driving. Driving between the tele-work site and the central work site or a private trip to the store, the post office or elsewhere may be construed to be state business. If that trip causes harm to the property or person of a third party, you risk a liability claim.
  • Liability claim from the family. State equipment that starts a house fire or shocks a child may result in a family member´s claim against your agency.
Other Risks:
  • Wage, hour, and regulatory risks. Your reduced oversight and control of working hours could lead to claims. There can be misunderstandings about overtime, vacation, and sick leave. These claims can sometimes be raised for the first time after the employment relationship ends. (The employee’s personal diary or log can substantiate their claim for compensation.)
  • Less able to control or protect records. Some paper or computer records at the tele-work site may be confidential and need security. Most will be public records owned by the state and subject to public disclosure. You may need access to records at the tele-work site at a time when your employee is ill, on vacation, or in an adversarial situation with you. You may need to revise your records retention plan, on file with State Archives.
  • Out of state risks. If your worker´s tele-work site is across the state line, your legal risks escalate sharply. You may lose the protection of the Oregon Tort Claims Act limits on liability. You may lose more control over public records. You will have difficulty in pursuing claims against the worker. And, you may need to have us buy workers´ compensation coverage in the other state. Consequently, state policy prohibits telecommuting from outside the state’s borders, unless the worker is on travel status or is employed full time out of state. (All employees duty stationed out-of-state or out-of-country need special analysis by us to assure that local insurance laws are not violated.)
Other Issues for Managers to Identify and Resolve:
 
Who may telecommute? Not all work and not all workers qualify for telecommuting. Some workers may desire it, some may not. Some individuals may request work at home as an ADA accommodation for a disability. When is it a reasonable accommodation? (See Special Risks That Should Rarely Occur.)
  • How many employees can you have telecommuting and still keep your office open and operating?
  • Office routines. The tele-commuter’s absence from the central office will need to be considered in training, changing policies or procedures, handling absences, explaining benefit changes, assigning duties, and all group activities. Routines may also have to change to get tele-work site equipment maintained, repaired, and supplied. Added equipment may be needed when the worker is in the central office and their computer is at the tele-work site.
  • Telephone issues. A second line may be needed for a modem or for heavy volume. Who will pay installation and monthly charges? Who will pay for long distance calls? Will they be placed outside of the state´s low-cost system of leased lines and computer control? Will communication equipment for the disabled be needed?
 

Plan to Manage the Risks
 
Do not be discouraged by identifying risks. Instead, develop strategies to control or manage your risks. After you have a clear picture of the risks to be managed, look for options to deal with each of them. Here are some basic suggestions to start you on the road. Of course, you may prefer options other than what we suggest.
 
Set Program Standards and Procedures: Do not grant a request to work at home on a case-by-case basis. Instead, write standards and procedures for a telecommuting program. Then you can decide all requests fairly and consistently. If people know the rules and see them applied, they are more likely to see that their request has not been denied unfairly. Your standards for telecommuting should deal with the central issues. They might include:
  • Decision Authority or Process. Who plays what role in deciding to allow telecommuting? What management level can approve or deny a request? How are personnel and computer specialists to be involved?
  • Dependable performance. State policy says consideration may be given to employees who have demonstrated work habits and performance well suited to successful telecommuting. These are employees who perform tasks without negatively impacting the needs of the work unit, customer service, and agency expense.
  • Agency Costs or Savings. You set the standard. It might be that work at the tele-work site must save money for the agency, or not increase costs, or not raise costs by more than some percentage or amount. For example, you may want to deny a request from a worker who commutes only two miles to work and yet needs to make extensive long distance calls from home, or would need extensive equipment installed at home. You might approve a request for the same person who uses a lap top computer and little or no phone calls.
  • Qualifying Work. You can reduce confusion by deciding what broad kinds of work can and cannot qualify for telecommuting. Word processing, data entry, and report writing might be what you would consider allowing. Management and regulatory functions might not be allowed. State policy prohibits business visits or meetings with agency customers be held at a home work site. Neither does it permit regularly scheduled meetings with coworkers. You might not allow work that requires original or confidential office files be taken home.
  • Full Workdays. We recommend you restrict telecommuting to full workdays so your agency is not responsible for the driving hazards of travel to and from the office. (And, remember the goal of reduced mileage to work?)
  • Qualifying Homes and Situations. You might decide what minimum or maximum distance from the office would qualify. State policy forbids tele-work sites to be located outside Oregon, unless the central work site is also out of state. You might set minimum electrical and security requirements. Dependent care is a full-time job with legal obligations. So is state work. During work hours, state policy (1) prohibits the tele-commuter to act as primary care-giver for dependents, and (2) prohibits the tele-commuter to perform personal business.
  • Safety. You may require a designated work area at the tele-work site and say how that area shall be maintained and who has access. You may want to ensure the employee has a work station set up at least as ergonomically correct as the one you provide at the office. Place a clause in the agreement to allow SAIF or agency safety representative access to the home work site to conduct accident investigations or job-site evaluations.
Put it in Writing: State policy requires a written agreement defining rights and duties. Begin with the model agreement in State Policy 50.050.01. Additional conditions can be stated under Other Arrangements. You may modify the agreement to fit the individual tele-work site circumstances. Have significant changes reviewed by your legal counsel. Have it signed by the tele-commuter, supervisor, and your appointing authority. Its purpose is to avoid misunderstandings and disputes caused by faulty memories. In it, we suggest you deal with at least the following:
  • Define where the worker is duty-stationed, central work site or tele-work site. In most cases, the central work site is preferable. Specify exact work hours at the tele-work site. Require advance approval for work outside of those hours. Say how vacation, sick leave, personal leave, and travel will be approved. Prohibit any overtime without written approval. Require time sheets, as at the central work site.
  • Say to what extent your tele-commuter should be reachable by phone. You may want your worker to checkout when leaving the tele-work site, just like your workers do at the central office. Otherwise, you may end up liable for an accident that really was not a business trip.
  • Define how tele-work will be assigned and evaluated. Say what to do if the worker runs out of work. Will you pay for down time?
  • Require signed receipts for all equipment and supplies authorized to be taken home.
  • Say how and when the worker is to notify the agency of any loss to state property. Say it if the worker will be liable for your deductible under certain conditions. Remember, you cannot negate our right to pursue recovery from any employee who willfully or negligently damages or destroys any state property we cover.
  • Say what uses will or will not be allowed for any agency computer and software. You may want to allow insignificant personal uses or allow none. Specify any security requirements.
  • State policy says tele-work site office supplies shall be provided by the agency. Say if you prohibit mid-day travel to and from the central work site. Say if you prohibit the worker to run to the store for supplies. We recommend both.
  • Say that there is no state coverage and the agency is not responsible for any private property used, lost, or damaged due to work at the tele-work site.
  • Say who pays for which equipment and what installation charges. Include the phone line and long distance calls. Will your agency issue a state telephone credit card to make state business phone calls?
  • Say how the employee is to get supplies and equipment repairs.
  • Reserve the right to terminate the program without cause. Define any warning period if you agree to one.
Plan for Basic Computer Risks: Have a plan to back up critical data and protect sensitive data. Decide whether you need surge protectors. If computer files will have sensitive information, you may need a locking computer. Passwords can give a little protection. To prevent viruses, do not allow any software or diskettes to be used in the state computer that are ever used on any computer not owned by the agency. Prohibit the use of dial-in scripts. Do not allow the state computer to be used to dial bulletin boards. State policy says DAS-Information Resource Management Network Security Policy shall be followed in cases of PC equipment, software and modem connections to state computer systems.
 
Plan for Basic Auto Risks: Use our Request To Use Own Car On State Business form if you permit your employee or supervisor to use a private auto for agency business. We do not recommend that tele-commuters be allowed to use their private car at will for state business. It becomes impossible to separate business from personal use.
 

Risks That Should Rarely Occur
 
No business meetings in the home. Here is why the state policy prohibits them.
  • You are not able to protect your worker from client threats or violence.
  • You cannot protect clients or visitors. A child visitor to the family could be injured by state equipment. If people (clients or co-workers or others) come to the home on business, they can trip or slip and fall. They can be bitten by a pet.
  • If clients or co-workers meet with your workers at home, the home may have to be made accessible to the disabled. Likewise, if clients must call the worker at home, you may need to provide communication devices for the hearing impaired.
  • You cannot defend false tort claims as readily. You will not have an office full of witnesses. You cannot testify as to what is standard practice at home. So visitors can falsely allege harm or misconduct, which would be more readily rebutted at the office.
  • A claim could come from a family member harmed by a client visiting the home on business.
Tele-commuting three or more days a week.  Then, you need to consider carefully a number of additional issues.
  • Work standards, evaluations, and assignments must be designed for constantly independent work at the tele-work site. You will not be able to directly observe behavior, technique, and skills, just results. You must plan for how work will be assigned, critiqued, and modified.
  • You must either plan to provide equal opportunities in promotions, training, and agency activities or, assure that the tele-commuter knows that these are inevitably impaired by the nature of continuously working away from the central work site.
  • Special provisions will be needed to assure communication of agency policy and issues to the always out-of-office worker.
  • If the employee is a traveler, stationed at home, require a detailed travel log and an advance travel plan or calendar.
Tele-commuting is not for a problem employee
 
Do not engage telecommuting or sham telecommuting to move a problem employee out of the office. There have been rare cases in which an agency has stationed a worker at home as some kind of dispute settlement or to remove a discipline problem. This is not usually an appropriate or effective solution. And, it can come back to bite you. If you assign someone to work at home and do not actually have them perform the duties of their position, you can be personally liable for the state funds that are unearned, but still paid to the non-worker. If you falsify time sheets or other documents in order to get a non-worker a paycheck, you may face criminal charges. It is wiser by far to deal with disputes and discipline in a direct and open manner instead of trying to sweep them out of sight.
 
ADA Accommodation
 
If asked to allow telecommuting as an ADA accommodation for a disability, you must meet the requirements of your agency’s policies to determine if it is a reasonable accommodation. You must also meet the requirements of your agency’s telecommuting policy. Talk to your personnel officer for assistance.
 

Risks for the Employee
 
Working at home poses a few new risks to your worker. And these are not your responsibility. Still, alerting your tele-commuters will help them protect themselves.
  • Property Risks: Neither you nor we may pay to repair or replace worker´s property used at home for state business. Yet, in some circumstances, a worker may be liable to the state for his or her careless damage to state property (at home or at the state workplace). But, there may be greater risk in the home. We may seek recovery from family or friends for damage to state equipment. You may seek recovery of the $500 deductible for state property losses.
  • Liability Risks: The state covers employees for most job related liability. When an employee commits a civil wrong at home, it can be more difficult for him or her to show that it was unintentional and in the course of duties or employment. Failing to establish that, would leave the employee personally liable. The degree of risk depends largely on the nature of the employee’s work. If a supervisor or co-worker must come to the home, the employee may need liability insurance. The employee or spouse owes a legal duty of care to visitors. The state may not cover every claim. For example, an injury might be caused by something the employee´s family does. We do not indemnify family members. Tele-commuters should check with their insurance agents to see that they are covered for such risks.
  • Tax Implications: Telecommuting does not necessarily create a home office tax deduction. The worker will want to carefully investigate the tax rules.

Tele-commuting Resources
 
The Office of Energy offers information, training and technical assistance to agencies interested in implementing telecommuting programs. Videos, training workbooks, sample policies and agreements, and a resource library are available. Staff can answer your questions and help you successfully get a telecommuting program off the ground. The Office of Energy works with Department of Administrative Services and Department of Justice to provide consistent and accurate telecommuting information to state agencies. Call the Office of Energy at (503) 378-4040.
 
For questions regarding this RisKey, contact your Risk Management Consultant at (503) 373-RISK. 
 
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