Working From Home and Workers’ Compensation
Telecommuting is great…but what if an employee gets hurt?
By Peter Karlin
According to a 2015 Gallup poll, and a June of 2017 report from Global Workplace Analytics, 3.7 million people work from home at least half the time. That report also notes that 50% of Americans have jobs compatible with working from home and 80-90 percent of the US work force report wanting to work from home to some degree.
Allowing employees to work from home has significant benefits for the employer. The policy attracts talent from wider areas, lowers costs, and can increase worker productivity and retention of employees.
However, with benefit comes risk. From a Workers Compensation standpoint in CA, employees working from home create a greater risk for the employer, as they have little or no control over the home workplace. Safety inspections are probably not taking place and most office rules cannot be completely monitored.
What if an employee is injured while taking dogs for a walk, or trips over the dog while getting a work product from the garage? What if employee goes out to the post office or coffeeshop and is injured? Perhaps, they fall down the stairs while texting on the phone. What if your manager has heart attack at home during the work day?
There is surprisingly little case law on this subject. This is perhaps because there is really no change in the law. An injury at home is basically treated the same as an injury at the workplace. The injury must be AOE/COE, arising out of and in the course of employment.
AOE means the employment must be the cause of the injury. For an injury to "arise out of" the employment, it must, "occur by reason of a condition or incident of the employment. That is, the employment and the injury must be linked in some causal fashion." COE, refers to the time, place and circumstances under which the injury occurs. An employee is in the course of employment, if he/she is doing the things that the employment agreement reasonably allows or expects him/her to do (SOC).
Employers can take steps to alleviate some of this exposure:
Clearly delineate the employee’s working hours; establish set breaks.
Delineate the physical boundaries of the home office to possibly limit liabilities for injuries throughout the house...though this is not a likely approach.
Delineate the scope of the job duties/activities so the manager can’t claim there was required use of a jackhammer.
Where economically feasible, utilize home office safety inspections and ergonomic workstations
Certain other workers compensation doctrines come into play such as the Personal Comfort Doctrine. This allows compensation for acts necessary for the comfort, convenience, health and welfare of employee while at work. An employee working at home is afforded the same protection. If the employee is making coffee and burns himself during working hours in the kitchen, this will probably be found compensable.
Many of the principles of the bunkhouse rule are also analogous and employer will be found liable when it was not unusual or unreasonable for the employees to be on the job at the time of the incident.
There are issues when defending workers compensation claims for telecommuters. It lends itself to fraudulent claims. There will usually be no witnesses or at best, biased witnesses. The big questions are what was the employee doing when injured, what time was the injury, and where did the injury occur? The defense of these work from home claims are very fact driven. Similar fact patterns can have different results. An employee who gets up at 2am and is injured while texting, might be compensable if she is a manager of a 24-hour warehouse texting about work. Compare that to a daughter providing home health care to her grandmother under a government social service program, who is injured while texting a friend. The latter will most likely not be compensable.
Employees working from home makes good business sense. However, it must be balanced with common sense. Employees should be advised in writing that working from home is a privilege and not a right. There are rules, job descriptions, work hours, break times, etc. This will assist greatly in defending these types of workers’ compensation claims which can be challenging to defend.
Have any questions? Want to learn more? Visit Peter’s page and reach out!