Many school districts across South Carolina are presently using a virtual platform for some or all of student instruction. While some school districts require that teachers instruct students virtually from the teacher's regular classroom, other districts are allowing teachers to instruct from their home. The home environment may result in an increase in challenging workers' compensation claims, requiring the determination of whether an employee's claimed injury is legitimate or fraudulent. The home environment also can be challenging as far as the maintenance of privacy and confidentiality, resulting in potential claims under the Family Educational Rights and Privacy Act (FERPA).
Workers' Compensation and Telework Agreements
An employee's credibility or lack thereof is important in all workers' compensation claims. The South Carolina statutes governing workers' compensation claims require the injured employee to demonstrate that his/her injury arose out of and in the course of employment to be compensable. Because teleworker injuries are often unwitnessed, the employee's prior work history, integrity, and diligence in following telework policies/procedures and timeliness as to reporting any claims will be important. To protect themselves, school districts should consider implementing comprehensive telework policies and procedures to prevent or defeat fraudulent workers' compensation claims.
Within these policies and procedures, districts should generally address how the employee's home workspace will be designed. For example, employees should be advised to designate a working space within their home that is free from potential hazards. Districts also should inform teleworking employees that they are required to document the times when they take a break to eat or perform household chores, so it is clear that if an injury occurs during that break time, e.g. a kitchen burn, that injury will not be compensable. Employees also should be placed on notice that school/district officials may visit an employee's home during regular work hours to determine if the working environment presents hazards.
Confidentiality and Teleworking
Within their home environment, most teachers likely do not have the level of security, such as locked files, computers, and desks, that are present in a regular classroom. Because the confidentiality of student education information is still required by FERPA regardless of whether the instruction is occurring from the home environment, districts must advise teachers that they are expected to store student education information, such as attendance, grades, and discipline, in a folder or folders on the computer where they cannot be accessed by anyone other than the teacher. Teachers also should ensure that, during instruction, family members and/or visitors to their home are kept away from the area of the house where instruction is occurring.
Finally, many teachers were given the option at the beginning of the school year to teach remotely or face-to-face. For those teachers who selected the virtual option, there is no guarantee that they will be able to teach remotely for the entire school year. As your district makes a decision on transitioning from virtual to face-to-face instruction, we recommend you remind teachers that their contract does not designate a specified place of instruction and they may be required to return to their classroom at any time.
If you have questions or would like for us to assist you with developing teleworking policies or procedures, please feel free to contact our office.
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