In March of 2020, many Americans picked their kids up from school for the last time. What followed, remote schooling, ranged from 100% video class to sporadic attendance tied to positive cases reported.
Students weren’t and aren’t the only ones going through this: in California, a significant portion of the population found themselves barred from working or limited to working remotely. Those that could do their jobs with a computer diligently got to work – often trying to not hear the kids learning algebra just six feet away, siphoning precious internet bandwidth for “educational” cartoons.
As if employers weren’t facing enough, shelter-in-place brings the prospect of injured-at-home. In fact, your cynical author would submit to you that the work-from-home employee is actually the “live at work” employee, and injuries sustained in the course of employment are still compensable, even if sustained in pajamas. Employers have had employees work from home and sustain injury from home for decades – just not on the vast scale as we see today.
Such injuries usually break down into two categories – injuries sustained while working at home and injuries sustained while en route to (or from) the home worksite. Compensability for both has the same initial point of inquiry: was this an authorized home-worksite? An employee’s unilateral decision to work from home is insufficient – the employer must impliedly or expressly require the employee to work from home.
For example, when a college professor chose to work from home for his own convenience, and not for the benefit of the employer, the WCAB found that no valid home worksite existed and ordered applicant to take nothing. Santa Rosa Jr. College v. WCAB (Smythe). By contrast, when an employee was expected by the employer to complete any unfinished work from home, a compensable injury WAS found by the WCAB. Bramall v. WCAB.
If the employer is faced with getting no work done due to shelter-in-place, or getting some work done by allowing employees to work from home, then it is to the employer’s benefit when it authorizes employees to work from home, and injuries sustained while working at home may be compensable.
Second, employers must examine if the injury was sustained while working. Although the personal comfort doctrine will lead to compensability found for injuries sustained while going to the restroom, getting a drink of water, or taking a stretch break (etc.), the doctrine has its limits. Once the employee has changed activities from a “comfort” break to doing a non-work task, the compensability stops.
For example, if your employee wanders into the kitchen to get a snack and trips over a sleeping dog, that’s probably going to be a compensable claim. But what if your employee stops working and goes to the grocery store to get snacks? At that point, the trip is probably enough of a deviation from the work activities (assuming grocery shopping isn’t one of the job duties) so that injuries sustained on the way to or from or even at the grocery store won’t be compensable.
The difficulty in addressing these claims is that injuries sustained in a conventional workplace with co-workers present tend to be witnessed. Signs of intentional self-infliction of the injury, intoxication, roughhousing, or initial physical aggressor mechanisms can be recorded in the worksite and reported by other employees. Absent a particularly disgruntled roommate, the employer is going to have a hard time proving those defenses with an injury sustained at home.
But, your zealous author is no chicken-little. There’s always SOMETHING the employer can do to properly investigate the claim. What was the employee’s e-mail traffic like before the injury? Were e-mails coming in and, more importantly, going out right around the time of the accident? Or had the work station been idle for a few hours?
What about phone calls? With VoIP and cell phone logging, there’s a pretty good record of what phone calls were being made in the same 2-hour period as the alleged injury.
Finally, let’s not forget that an employer is as susceptible to cumulative trauma claims from work-at-home employees as it is to employer worksite ones – possibly more so. While the employer can document an ergonomic assessment and provide ergonomic furniture at its worksite, it would have no such control for a work-from-home arrangement. All the things that trigger a cumulative trauma claim, from damaged joints to damaged careers, can just as easily happen on the couch at home.
The key to handling these, in your shamelessly self-promoting defense attorney author’s opinion, is to investigate thoroughly, quickly, and as early as possible. Defending these cases will be on the extreme end of fact-specific, and will most likely require employer-level investigations, deposition of the employee, and constructing a reasonable timeline of events. In other words, work-from home injury cases really should be referred to an outside defense attorney at the first opportunity.
While working from home might be the answer to the modern shelter-in-place landscape, and might even help avoid industrial COVID19 claims, the full spectrum of traditional workers’ compensation risks are still there, for the employee wearing business casual attire and for the employee wearing fuzzy slippers alike.
Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Gregory Grinberg, Esq. is one of California’s premier workers’ comp defense attorneys. He is a managing partner of GALE, SUTOW & ASSOCIATES, APC.