The Impact of Remote, Work-From-Home Arrangements on Worker’s Compensation Exposure

Before COVID-19 prompted stay-at-home orders, quarantines and social distancing, most employees in the U.S. traveled from their homes to fixed worksites, factories and offices. Almost overnight, many workforces converted to remote or work-from-home settings. Many employers plan to allow employees to continue to work from home for the foreseeable future. What will these new working arrangements mean to potential worker’s compensation liability—a new frontier of legal liability?

Working from home issues were emerging (and undeveloped) prior to this pandemic; exposures for worker’s compensation outside of the workplace were generally limited to situations involving traveling employees. As employees’ homes become an extension of the employers’ premises (versus taking work home from a fixed workplace), employers can face exposure for work-related claims even though they do not control the remote work areas. Investigations into alleged injuries may be more difficult because there will be no witnesses or security footage to corroborate the allegations.

Generally, an employee injury or illness is compensable if it arises out of (there is a causal connection between work and the injury) and in the course of employment (the injury occurs at a time within the period of employment, at a place where the employee reasonably may be and while the employee is fulfilling work duties or an activity incidental to employment). If the statutory elements are met, and there are no defenses that would defeat the claim, the employee will be entitled to statutory compensation and benefits.

Arising Out of Employment

As with all worker’s compensation claims, the employer or its insurer should fully investigate all asserted facts to determine causation and identify any available defenses (such as personal deviations, progression of personal conditions, violation of known safety rules or intoxication). Compensable injuries may occur unexpectedly, by accident (such as a fall) or they may develop over time (as with cumulative trauma). When investigating an asserted claim, remember that: 1) pain itself is not an injury and 2) experiencing pain during work tasks does not mean the work tasks caused the pain.

If the accident was caused by a risk that is personal to the employee (such as an idiopathic or pre-existing condition), the injury is not a compensable work injury. If the accident was caused by a neutral risk (one neither personal nor related to employment—such as falling over a family pet), courts have differed on whether the facts presented a risk incidental to employment and, thus, a compensable injury. Courts generally weigh a neutral risk in favor of compensability if there is a benefit to an employer. In our current situation, it is arguable that the work-from-home arrangements during a global pandemic equally benefit the employee who may be juggling school and family obligations along with health concerns.

In the Course of Employment

Much of the investigation may focus on whether the injury occurred in the course of employment or was incidental to employment. Employers may be able to limit exposure by developing new guidelines to help define the scope of employment and the employer’s expectations.

It is impossible to eliminate risks of accidents in homes or remote work areas, but it is possible to manage risks by implementing work-from-home policies. Here are some suggestions to consider to better define the time, place and activity parameters of work-at-home situations:
 

• Define work hours.
  
  Minor deviations for personal comfort (to use the restroom, make tea or eat lunch) may not be sufficient to take an injury out of the course of employment. Other tasks (such as assisting a child with school or addressing child-care needs) may present more clear deviations from the course of employment. Defining work hours can help reduce ambiguous factual situations.
   
  • Require an employee to clock out when taking breaks, having lunch or pursing other personal errands.
  • Enact guidelines for check-ins or time management reports.
  • Track hours using geo tracking or equipment tracking.
  Employers may also have wage and hour obligations to keep track of work hours for compensation requirements.
   
• Communicate standards for a home office.
  
  Having a designated work space or office and using specific equipment may help better define the secondary work location.
   
• Train or retrain employees on safety measures and ergonomics to prevent injuries and identify hazards.
  
  An employer should continue to emphasize safety rules and evaluate ergonomics of the work area, just as it would if the employee was working on-site. If an employee has work restrictions (such as lifting, standing or bending), the employee should be reminded that these restrictions apply equally to the work completed remotely, as well as personal activities.
   
• Communicate safety/work rules.
  
  Employers have a general duty to provide a safe working environment and to comply with federal and state work rules. Remind employees that the work rules apply equally to a home work setting. A violation of a clearly communicated work rule may be an affirmative defense to an asserted work injury.
   
• Remind employees of claim reporting process.
  
  Promptly reporting a claim is important. It allows for timely investigations and medical care, if needed. Exposure for medical care may be limited or reduced if an employee decides to seek medical care before reporting the claim.

Whether an injury is compensable is a factual question, determined by the Board. Establishing expectations up front may help to avoid factual ambiguities that may occur during the course of our current work environment, as we proceed toward a new legal frontier associated with secondary work locations.

If you have questions about worker’s compensation, please contact Ann H. Stewart or any other member of our Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.