Are Injuries that Occur While Working from Home Compensable?
In the age of COVID-19, many employers are turning to telecommuting as a preventative measure to protect their employees from the virus. But what happens when a telecommuting employee suffers an injury while working at home? What circumstances determine whether or not the injury incurred at home is compensable?
Virginia Code § 65.2-101 requires that the claimant prove that he or she suffered an “injury by accident arising out of and in the course of the employment.” An injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee is reasonably expected to be, and while he is fulfilling some duty of his employment or doing something reasonably incident thereto. Baggett Transportation Company v. Dillon, 219 Va. 633, 248 S.E.2d 819 (1978).
Based on this definition alone, it stands to reason that, so long as the claimant is permitted to telecommute, is telecommuting from a location that they are reasonably expected to work from, and is engaged in some employment related activity at the time of the accident, the “in the course of employment” requirement will be satisfied. However, there are number of factors that the Commission considers in determining if a home injury is a compensable work-related injury:
Was the claimant actually authorized to be telecommuting?
The first step in considering compensability is to determine if the claimant actually had permission to be telecommuting on the day of the alleged injury. This requirement is likely easily met as the employee’s supervisor would likely have noticed if they were not showing up to work when they were supposed to be. However, there are limited circumstances in which this issue may arise and, should it be determined that the claimant was not authorized to work from home, the Commission may deny the claim.
Accordingly, employers should clearly state telecommuting policies and promptly address any employee that is operating outside of the bounds of that policy.
Did the injury occur during the employee’s expected work hours?
It is important to determine what hours the claimant was expected to be working. Some employers allow for a more flexible work schedule than others. While reviewing the employer’s stated hours of work may provide an answer, this may not be the end of the analysis. There are instances where the claimant may be working outside of established work hours in which the Commission may find that the claimant was still working during expected work hours. For example, an employer may have a policy stating that works ends at 5:00 p.m. every day, but a supervisor calls the employee after 5:00 p.m. to discuss something work related or to ask the claimant to complete some work task before the start of the next work hours period. In that case, if the claimant then injured his back at 5:30 p.m. while lifting a box of files to complete a task for the supervisor, the Commission would likely find that the injury occurred during expected work hours.
Therefore, employers should designate specific hours that the employee is expected to work, and should strive to discourage employees from working outside of those hours. Further, it may be beneficial to designate specific timeframes in which the employee is permitted to take breaks. Doing so may make it easier to determine whether or not the claimant was within work hours at the time of the accident.
Did the injury occur where the claimant was reasonably expected to be working?
When analyzing a telecommuting case, the location in which the injury occurred should be considered. If the employee has a designated work area, such as a home office, it may be easier to determine that an injury did not arise in the course of employment if the accident took place outside of that home office. However, where the claimant was “reasonably expected to be working” may vary across industries and the culture of the employer. Say, for instance, that a claimant was working on a laptop in the park across the street from their home when a dog bit them. Had the employer in this hypothetical not sent out a company-wide email that morning encouraging employees to “go to a nearby park for inspiration while working,” the claim may not have been compensable.
To limit potential exposure, employers should provide policies to employees outlining the narrow locations in which the employee may work while telecommuting. To further limit exposure, employers should provide training related to workstation setup and safety measures, including ergonomics.
Did a risk peculiar to employment give rise to the injury?
In order to be compensable, it is not enough for a telecommuting injury to have occurred during work hours and in a location that the claimant was reasonably expected to be. An employer is only liable for workplace injuries caused by a risk peculiar to employment. See Dreyfuss & Co. v. Meade, 129 S.E.2d 336 (1925). If the claimant sustains a back injury while trying to lift a box of work-related documents, the mechanism of injury would constitute a risk peculiar to employment. However, if the claimant was simply walking to the box when they sprained their ankle, then the injury would not be compensable.
Accordingly, employers should provide training and guidance on proper use of employer-provided equipment as well as restrictions on activities such as lifting, carrying, pushing, and pulling.
Do the circumstances of the injury fall under the “personal comfort doctrine”?
An injury occurring while telecommuting may still be compensable even if it occurs outside of a location the claimant is reasonably expected to be working in and/or the claimant was not engaged in a work task, if the personal comfort doctrine applies. Application of the personal comfort doctrine includes a number of factors for consideration that are tangential to this discussion, but it is important to note that an employee’s fall during a trip to their bathroom from their home office may still be compensable.
Was there a virtual, work-sponsored, social event?
Maybe the claimant was not injured while completing work, but rather during a work-sponsored social event. Injuries occurring during a work-sponsored social event have their own requirements to constitute a compensable injury that would be tangential to the subject of this discussion, but it is important to note that virtual events can still fall into this category. For example, perhaps an employer plans and insists that employees participate in a virtual scavenger hunt via video-conference, in which the employees are instructed to “see who can find the given items in their house the fastest.” In this instance, if an employee were to trip and fall in the process of running to find an item, the injury could be compensable depending on other factors.
Accordingly, employers should be careful to ask employees to participate in a virtual work social event that will be free of risk of injury to the employee. Further, as with any work-sponsored non-work event, employers should make clear to employees that attendance/participation is optional.
Injuries that occur while employees are telecommuting may ultimately be compensable, but an analysis of the totality of the circumstances in which the injury occurred is required in order to determine if the injury truly arose out of and in the course of employment. As telecommuting becomes more prevalent as time goes on, we are likely to see a growing number of claims litigated that involve injuries sustained at home.
Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.
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