Article Contributed by Nicole Andrescavage, Esq. and Gregory Tumolo, Esq. of Labor & Employment Practice Group at Lewis Brisbois Bisgaard & Smith, LLP
The ongoing COVID-19 pandemic has led to a dramatic increase in the number of employees working from home on a part-time or full-time basis. “Hybrid” work arrangements—where employees work remotely on one or more workdays per week—are projected to remain a workplace norm long after the pandemic has ended.
As a result of the increased availability and desirability of remote work arrangements, employers have been forced to consider potential impacts to their operations that they may not have considered previously. One such impact discussed herein is workers’ compensation claims brought by employees working remotely.
Most workers’ compensation laws were enacted in the early 1900s—long before the advent of computers and the internet. These statutory schemes were intended to compensate workers for illnesses and injuries sustained at a workplace outside the home and under the control of the employer. The drafters of these laws hardly could have envisioned how they would be applied to work-related injuries occurring in an employee’s home.
This article will delve into the question of whether employees working remotely are covered under workers’ compensation laws and will highlight developing coverage considerations in case law. This article also will assess whether and when one’s home may be considered a place of employment for coverage purposes. Finally, this article will highlight best practices to minimize workers’ compensation risk associated with remote workers.
Are Remote Workers Covered by Workers’ Compensation Insurance?
Generally, an employee is covered under their employer’s workers’ compensation insurance if they are injured while working from home so long as they meet their burden of proving that the injury was work-related. However, state law governs workers’ compensation coverage, and these laws vary from state to state.
Some states do not require employers to obtain workers’ compensation coverage, while others explicitly require all employers to obtain coverage. New York, for example, requires workers’ compensation insurance for all employers. However, “[t]he heart of every compensation act, and the source of most litigation in the compensation field, is the coverage formula. Forty-three states, and the Longshore and Harbor Workers’ Compensation Act, have adopted the entire British Compensation Act formula: “arising out of and in the course of employment.”
“Arising Out of and In the Course of” Employment
Connecticut, Massachusetts, New York, and Rhode Island all follow some version of the “arising out of and in the course of employment” rule. While there is one test that must be met by the injured worker (i.e., whether there is a “work connection” to the employee’s illness or injury), “to make the task of construction easier, the phrase [has been] broken in half, with the ‘arising out of’ portion construed to refer to causal origin, and the ‘course of employment’ portion to the time, place, and circumstances of the accident in relation to the employment.”
In addressing whether a remote worker’s injury “arises out of” their employment, the focus of the court or administrative agency’s inquiry will be whether the employee was furthering the aims or acting in the interest of the employer at the time of injury. Courts tend to be fairly liberal when making this “arising out of” determination.
In one recent example, an employee carrying boxes of new home office furniture up the stairs of their home, after the employer had specifically refused to purchase the new office furniture, claimed a workers’ compensation-covered injury. The Supreme Court of New York remanded the case to the Workers’ Compensation Board to determine, consistently with precedent, whether the activity was “sufficiently work related” even though the employee was on a lunch break at the time of injury. In another case, an employee fell and injured her ankle and knee after getting up from a recliner. At the time of the fall, the employee alleged that she was on the phone with a client and was walking to retrieve her car keys to pick up some completed paperwork from the client. In that case, the employee was entitled to a rebuttable presumption that the fall occurred while she was engaged in a work activity.
Older workers’ compensation doctrines are now being applied in new and interesting ways to determine whether an injury sustained by a remote worker arises “in the course of” their employment. In jurisdictions that recognize the “personal comfort doctrine,” activities necessary for an employee’s personal comfort or welfare do not prevent an employee from being considered “at work.” In the context of remote work, an employee may sustain a compensable workers’ compensation injury while they are headed to the kitchen for a quick snack or to the restroom in between Zoom meetings. Similarly, under the “going and coming” rule, compensability is generally denied for injuries sustained by an employee while traveling between their home and the worksite. However, now that the home and the workplace can both be considered “places of employment” (as detailed below), injuries sustained while traveling to/from home may now be considered compensable.
The Home as a “Place of Employment”
Pre-COVID, whether an employee’s home would be considered their “place of employment” typically depended on whether the employee had the employer’s authority or approval to work from home. In New York, for example, “[a] ‘regular pattern of work at home’ renders the employee’s residence ‘a place of employment’ as much as any traditional workplace maintained by the employer.” The Florida District Court of Appeals held that where the employer knew and approved of the employee working from home, “[a]ccidents occur ‘in the course and the scope of employment’ when they occur ‘in the period of [ ] employment, at a place where [the employee] would reasonably be, while fulfilling her duties.’” The Florida court determined that a woman on a coffee break while working from her home “was where she ‘would reasonably be’” at the time of injury, but ultimately concluded that her injury was not compensable because she tripped over her dog.
Courts are likely to be more forgiving in determining whether the home is an employee’s “place of employment” when the employee alleging a work-related injury was working from their home due to a federal, state, or local public health “shelter in place” or quarantine order or an employer-mandated work from home directive following closure of the employee’s office. The need to comply with such orders and directives effectively establishes that the employee’s home has become their “place of employment.”
Best Practices to Minimize Workers’ Compensation Risk
The best defense to workers’ compensation claims involving remote workers is proactive management of the risk of injury. What follows are some commonsense steps that employers and HR professionals can take to keep their remote workers healthy, safe, and productive:
- Provide a workplace safety checklist | Many employers provide their remote employees with a safety checklist to help them to assess the overall safety of their work environment. Some common questions that employees may be asked to consider include the following:
- Is the floor area clear and free of tripping hazards?
- Do file cabinet drawers open into paths of travel?
- Are phone lines and charging cables secured under a desk or along a wall?
- Are area rugs secured to the floor and free of frayed or worn seams?
- Is there a working smoke detector in the vicinity of the workspace?
- Are radiators and portable space heaters located away from flammable items?
- Are electrical plugs and outlets in good working order, with no exposed or damaged wiring?
- Does the office chair provide adequate lumbar support?
- Is there adequate lighting?
- Have the monitor and keyboard been set up in an ergonomic manner?
- Inspect the home office | Employers should consider inspecting the employee’s home office to confirm that it is safe and suitable for work. Employers may want to document such inspections.
- Designate a dedicated work area | If possible, employees should be required to have a dedicated work area. This helps to minimize the likelihood of injury. It also helps to keep them focused during the workday.
- Maintain regular contact | Regular communication is essential to the success of a remote work arrangement. If regular communication is not maintained, employers may not learn about work-related accidents and injuries in a timely fashion. Additionally, remote workers who feel disconnected from the workplace tend to be less productive and more prone to accidents.
- Develop a remote work agreement | For remote work arrangements to succeed, employers must clearly define their expectations at the outset. It is recommended that employers spell out their expectations in a remote work agreement that is signed by the employee. Recommended items to include in a remote work agreement include the following:
- The employee’s work schedule
- Expected availability during business hours
- What constitutes the employee’s designated work area
- Frequency of communications with the employer
- The need to report all personal injuries
- The right to audit the employee’s workspace to ensure that it complies with safety standards
This is the time to assess and effectively manage your workers’ compensation risk. EANE can connect you with the needed resources and assistance to lower your organization’s risk while adapting to the workplace norms that the pandemic has ushered in.
Resources Cited In This Article include:
- See “It’s time to reimagine where and how work will get done – PwC’s US Remote Work Survey – January 12, 2021,” PwC (2021), available online at https://www.pwc.com/us/en/library/covid-19/us-remote-work-survey.html.
- See NY CLS Work Comp § 10.
- 1 Larson’s Workers’ Compensation Law § 3.01 (2021) (emphasis added).
- See Matter of Capraro v. Matrix Absence Mgmt., 2020 NY Slip Op 06000, ¶ 1, 187 A.D.3d 1395, 1397, 132 N.Y.S.3d 456, 459 (App. Div.).
- See Bluegrass.Org v. Higgins, No. 2018-CA-001262-WC, 2019 Ky. App. Unpub. LEXIS 413 (Ct. App. June 7, 2019).
- Matter of Capraro, 132 N.Y.S.3d at 459.
- Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133, 1135 (Fla. Dist. Ct. App. 2019).