Employers who supply their employees with company cell phones, laptops, BlackBerries, iPads and other portable devices could be in for a surprise if an employee is injured while using the device when off-site or off the clock.
Insurance claims professionals say claims made by workers injured while doing things where the relation to their employment is unclear are on the rise and the increasing use of mobile devices is challenging traditional notions of work-related injuries.
At this year’s Risk and Insurance Management Society (RIMS) meeting in Vancouver, these experts advised employers and risk managers to establish clear rules on employees’ use of mobile devices in order to mitigate injury claims.
“It used to be easy, working 9 to 5. We knew what everything was about, we knew what workers’ comp was, we knew what compensability was. Things have changed,” said Charles Martin, head of the claims consulting practice for global insurance broker Marsh.
Picture a woman behind the wheel of a car. She has a laptop open on the passenger seat, a GPS on her windshield, another portable device open on the dashboard, a smart phone in her hand, and earphones plugged in her ears.
This picture portrays an extreme situation but even if this woman has only one device operating, what happens if she is injured in an accident and files a workers’ compensation claim? Is the claim compensable?
Where was she going? Where was she coming from? Was she on her way to the office? On her way to daycare to pick up the kids? On her way to a client? What is she doing? Checking email? Listening to a conference call? Dialing her husband? Getting directions?
Or picture a man walking down the street after leaving the office. He is totally engrossed in checking email and texting on his BlackBerry and is oblivious to the upcoming crosswalk. He stumbles when he hits the curb, falls down and is hit by a car.
“These are real issues. People do this kind of stuff all the time and it really has presented a lot of very serious hazards out there and in the workplace. This isn’t just about driving while texting or looking on a computer, but driving presents some of the most serious exposures that are out there for the industry,” said Maureen McCarthy, Liberty Mutual, manager of Workers’ Compensation and Managed Care.
There have always been employers on the road but they tended to have defined routes or assignments years ago. If they needed to make a call, they used a pay phone, which hardly exist anymore.
“It wasn’t always like this. When I started working a few decades ago, things were pretty simple. You went to an office, a physical location. You had to go there. Your work was there, your file cabinets were there, your boss was there. Conference calls were unheard of. The workplace was very different. Everything was very much defined. Typically you would have a time period within which you had to be there,” said McCarthy.
Marsh’s Martin agrees that compensability was more easily determined when the workspace was more clearly defined.
‘You knew that if you were in your cubicle and you were injured, then you were likely going to have a compensable loss,” Martin said.
Of course, a lot of people have abandoned their cubicles. In 2009, there were 17.2 million people working from home. That number is expected to double by 2012.
McCarthy and Martin say the challenge is not just that more people are working from home. With mobile devices, people can — and increasingly do— work from many locations: houses, cars, clients’ locations, subways, libraries, bars, airports, parks, even the beach.
Insurers are also concerned with what employees are doing when they are not in the office. Are they checking email when on vacation, home due to sickness, or at their kid’s birthday party? Are they are taking conference calls in the car while driving? Are they simultaneously walking and texting or phoning.
(Research by contact manager program Xobni showed that 59 percent of Americans check work email while on vacation. A poll of risk managers in the RIMS audience found that 50 percent have taken a conference call in their car. “I do it but preach against it but I find it’s a necessary evil,” said one risk manager. Seventy-nine percent said they bring their laptop on vacation; even more—87 percent—said they check email while home sick.)
People feel compelled to do these things for a variety of reasons, according to McCarthy. Some feel their employer expects them to be available to answer email while home or away from work. Others blame pressure from working for international firms in a 24/7 global economy. Others blame the expectations of clients or just society in general.
In her own research, McCarthy said she found very little evidence that management is mandating these kinds of behaviors.
“It’s all self-imposed. It can be boss-to-boss, it can be employee-to-employee, group-to-group, and it’s creating a tremendous amount of tension in the workplace particularly where companies are on the one hand urging folks to explore and feel comfortable having the proper work-life balance and then, on the other hand, they are giving them all these devices that they can take home when they are theoretically off work,” she said.
Some of the behavior is generational and cuts both ways, suggested one risk manager. “With younger workers there is a blurring of personal and professional. There are kids who are on Facebook in the office,” he said. “It extends the other way, too, where they will check into work while not in the office. The younger culture seems to do both. The boundaries don’t seem as clear.”
However, even if management does not encourage the behavior, management could still have some responsibility if it is happening, just as it might in harassment situations.
“If it’s going on in an organization, then as an employer sometimes you’re owning it, too, if people are working all over the place doing all sorts of things,” McCarthy said.
There is not yet much case law to go on in judging the compensability of these type claims. But the fact courts have not yet gotten involved means employers have an opportunity to define the rules themselves.
“The good news in all of this is that because it’s so new, we get a chance to write the book. As employers and as risk managers we get to lead that charge,” said Michael Liebowitz, who is New York University’s director of risk management and insurance.
“Ultimately the courts are going to start opining on this…they are going to force us down a path but we have an opportunity today to change the rules or create them.”
He said the answer is for employers to have contracts with employees that define the course and scope of the rules on the use of mobile technology.
In establishing rules, employers need to consider their own tolerance for risk.
“How much risk is your organization willing to accept by delivering these devices to employees with the hope of getting higher productivity?”
Risk managers might need to collaborate with their human resources departments to define risk tolerance. “When does work culture go from healthy and productive to unhealthy and non-productive? When does that happen?” asked Liebowitz.
While an employer can’t mandate work-life balance, an employer can work to influence it in part by establishing best practices for mobile devices. “It’s a matter of creating the culture,” said one risk manager.
Liebowitz agrees.
“We are coming to a pivotal point where we need to take the bull by the horns. We need to establish some very hard and fast rules and we need to communicate them clearly. There needs to be ramifications and there needs to be a partnership with HR and employment lawyers to make sure these rules stick and they do work,” he said.
McCarthy said the current claims situation with mobile workers reminds her of about 20 years ago when employers started to crack down on after-work activities that might involve alcohol.
“After some very horrible accidents, employers quickly understood that they needed to clearly distinguish between what events were sponsored by the company and what events were not sponsored by the company. They also had to be very clear to not implicitly or explicitly support an activity that was being organized by a subgroup within the office,” McCarthy said.
Laws didn’t mandate that; it came about in response to situations occurring.
“That’s sort of where we are with mobile devices. If you put rules and laws and contacts in place around some of this, it makes it easier for people to try to strike the work-life balance,” the Liberty Mutual executive said.
