News

Work from Anywhere – Risk is Everywhere

In the May 7, 2024 issue of Inc. Magazine, HR Expert Suzanne Lucas declared “it’s time to make ‘Hush Trips’ a Fireable Offense”. Hush trips – employees working remotely while traveling away from home, and not disclosing their travel to their employer – continue to trend since the explosion of remote work resulting from the 2020 COVID-19 pandemic.

The problem with “hush trips” is not that the employees are failing to do their required work – this question remains unresolved. Some studies say that remote work makes employees more productive, and other studies say remote work reduces productivity, and there is no significant evidence to suggest that a “hush trip” affects employees’ ordinary level of productivity. However, undisclosed travel – particularly out of state, or out of country travel – exposes employers to additional risks of which they are not aware.

Some employers have already established reasonable work from home standards to place reasonable restrictions on where in the house an employee may work, in order to limit the number of workplace hazards. Even without set standards, most work from home employees wind up creating a dedicated work area that is relatively free of non-work material. An employee taking a “hush trip” could be going anywhere and working in a much less safe and organized environment, adding needless risk to the employment simply by changing environments.

If the employment is out of state or international, the environment in which the employee is working remotely is likely subject to that foreign jurisdictions laws in several ways that should cause concern – taxation, employment law, state OSHA, and pay rates/overtime to name a few. These are probably low-concern for most employers because this sort of travel is typically over within a few days and therefore too small an issue cause concern for most foreign jurisdiction’s agencies.

Workplace injuries are different, however. If a Virginia employee is injured while on vacation in California, the workplace injury could potentially be subject to jurisdiction in both states. California’s minimum and maximum rates are significantly higher than Virginia’s. California’s disability determinations are made differently, and significantly California allows for PPD awards for back injuries. An injury occurring in California therefore would have a substantial risk of causing more exposure than the same injury occurring in Virginia. This is true for most other states, in fact, as Virginia is one of the most employer-friendly workers’ compensation systems in the country.

More important than even the amount of the exposure, however, is the question of coverage for that exposure. The approved forms for Virginia all provide coverage for other states, if an employee begins work there after the effective date of the policy, and you are not insured in that state by other sources. However, if the work began in the other state before the effective date of the policy, Part 3(A)(4) of most workers’ compensation policies in Virginia will expressly exclude coverage for any accidents that occur there.

How is it determined when work “began” in the other state? This is not a simple question. If the injured worker makes a habit of travel to one specific state on multiple occasions, it is likely that the first such travel to the other state would be counted as the date that work began. If another employee has quietly gone and worked in the same state previously, would that count as the date on which work began in that state? These questions have yet to be considered by a court, but quite possibly the other employee’s work would count as the starting date.

Smaller employers may be able to rely on jurisdictional limits on who must carry insurance. Using California as an example again, the state requires all employers to carry insurance, no matter the number of employees, however, the employees must be “regularly in service” in California to trigger the duty to insure. In California, that means 35 or more hours per week for 13 or more weeks in the past year. Thus, a single employee traveling to California for a week or two would likely not trigger the duty to insure in California.

Adjacent states to Virginia, to which employees regularly travel, are more likely to present an issue – North Carolina, South Carolina and Maryland in particular. Each of those jurisdictions has its own requirements, its own jurisdictional laws and its own method of awarding benefits for injuries. Rather than undertaking to understand every nearby state’s workers’ compensation laws, and deciding whether or not to purchase insurance coverage, a prudent employer should consider simply limiting work from home opportunities to work that occurs from the employee’s actual home.

Insurers who are presented with this sort of out of jurisdiction claim must investigate the facts thoroughly to determine whether coverage is required of them under Part 3 of their policies. Given how different each jurisdiction is in its insurance requirements, this will be a very fact specific exercise.

Whether or not “hush travel” should be a fireable offense, it certainly presents risks for which employers cannot easily prepare.


Posted In: E-Blast