Dining room tables. Basements. Spare bedrooms. And for the lucky ones, a true home office. In the midst of the COVID-19 pandemic more employees then ever are working from home at the direction of their employers and local or state orders. For those companies that are able to transition to remote working for their employees, they also must accept the challenge of not having control over their employees’ remote work space. For employees that typically work in the office full time – special care is taken in the design of the space to be safe and ergonomic to reduce the possibility of injury during work hours. With the rapid shift to remote work due to COVID-19 shelter in place orders, employees may not have the space or resources to set up an identical work station.
Since the employer doesn’t have control over the work space, is an employee still entitled to workers’ compensation benefits if they are injured on the job? A simple reload of paper to the printer results in a tweaked elbow – now what? While the exact verbiage varies between our jurisdictions, discussed below, if the accident arises out of and in the course of employment, even when working remotely, it is a compensable accident. The main question will be whether these events at home fall within the definition of arising out of and in the course of employment.
One of the main factors that will be analyzed is if the employer directed the employee to work from home or if the employee was working from home due to convenience. In the current environment with COVID-19, it is likely that employees have been impacted by local or state stay-at-home orders and their employers have thus required them to work remotely.
Each case pertaining to potential workers’ compensation injuries sustained while working from home will be fact specific and it is best to consult with your attorney. Please continue reading for examples and state specific qualifiers in determining compensability of an injury.
Courts will likely determine whether the employee’s injury arose out of and in the course of their employment as required to perform their work duties and responsibilities remotely. The employee will have the burden to establish a causal connection between the conditions under which the work is required to be performed and the resulting accident. The employee must establish that the accident was the prevailing factor causing the injury, medical condition, and resulting disability or impairment.
Additionally, the employee must establish that the injury arose in the course of employment as it relates to the time, place – potentially being a home office, and circumstances under which the accident occurred. This will likely be a fact sensitive analysis taking into consideration the employee’s typical work hours, the particular location in which the employee was performing work duties, and the circumstances surrounding the incident – including whether the employer directed the employee to work from home or the employee was complying with a mandatory stay-at-home order.
Similar to traveling employees, remote workers may have a compensable claim for an injury sustained while carrying out a task that is integral or necessary to perform work duties and responsibilities from home. For example, the court may consider whether the employee was performing an integral or necessary part of employment when the injury occurred, or performing a primarily personal task. The Appeals Board for the Division of Workers Compensation found that an employee had a compensable claim for an injury that occurred while transporting work materials home in order to work on an employment-related project from home. King v. Anderson News Company, 1998 WL 780893, at *2 (Kan. Work. Comp. App. Bd. Oct. 6, 1998). It is likely that courts will apply similar principles in response to the significant increase in employees working remotely as a result of COVID-19.
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Generally, when an employee is injured at home, their injury is not compensable under the Missouri Workers’ Compensation Act. However, given the unprecedented need for employees to work remotely during the COVID-19 pandemic, it is plausible that injuries occurring at workers’ homes could be compensable workers’ compensation claims. With the 2005 amendments to the Act, the legislature made a clear change from focusing on employer premises to the current, more fluid, analysis discussed below.
Missouri has yet to directly decide the issue of the compensability of employees’ injuries while working remotely from home. The unprecedented COVID-19 virus will likely bring some unprecedented workers’ compensation claims in more ways than one, as there are many more workers working remotely from home.
In order for an employee’s injury to be compensable, it must have arisen out of and in the course of his employment, and the work-related incident must be the prevailing factor of his injuries. One key requirement is that the injury must not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. RSMo 287.020.3(2)(a). However, an injury has generally been held to arise out of and in the course of employment, “when it occurs within the period of employment at a location where employee would reasonably be while engaged in fulfilling the duties of employment or something incidental thereto.” Campbell v. Trees Unlimited, Inc., 505 S.W.3d 805, 815 (Mo. Ct. App. 2016) (quoting Simmons v. Bob Mears Wholesale Florist, 167 S.W.3d 222, 225 (Mo.App.S.D.2005). Given the current stay-at-home orders in many cities and counties throughout Missouri, remote work is currently required for many workers, and many are expected to work from their homes. However, the analysis requires further inquiry into the types of activities involved and resulting injuries for a claim to be compensable.
The application of 287.020.3(2)(a) involves a two-step analysis. First, was the hazard or risk related or unrelated to the employment? Where the activity giving rise to the accident and injury is integral to the performance of a worker’s job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. One can imagine an employee who is injured in their home office while reaching for something on a shelf, or bending down to turn on a computer while working from home may have a decent argument their claim is compensable. Where the work nexus is clear, some Missouri courts hold there is no need to consider the second part: whether the worker would have been equally exposed to the risk in normal non-employment life. Pile v. Lake Reg’l Health Sys., 321 S.W.3d 463, 467 (Mo. App. S.D. 2010).
Second, is the claimant equally exposed to this hazard or risk in normal, non-employment life. In Pile v. Lake Reg’l Health Sys., the Missouri Court of Appeals found a claimant, who suffered a foot fracture when she twisted her foot due to overuse, had a compensable claim since she spent roughly 80% of her day at work walking around, and only spent about 50% of her time outside of work on her feet walking. 321 S.W.3d 463, 467 (Mo. App. S.D. 2010). The Court held that because she was not equally exposed to the risk of overuse of her foot outside of her employment, this part of the subsection did not apply to bar her claim.
Given the two-step analysis required by this subsection, it seems an employee injured walking down the hallway while working from home would likely not have a compensable claim since walking down a hallway at home would probably be considered a risk unrelated to the employment, and one that the employee would be equally exposed to outside of their employment.
Therefore, it is not absolutely clear whether remote workers who are injured would be able to successfully bring workers’ compensation claims. Given that remote workers generally involve more computer-based work, the risk of injury is seemingly inherently lower. However, it is possible that a remote worker could bring a compensable workers’ compensation claim in Missouri.
Contact Steve McManus with questions about Missouri Workers’ Compensation
Generally speaking, injuries sustained at home by telecommuting employees are compensable so long as their injuries are work-related or arise out of their employment. These types of situations involving telecommuting employees are treated as if the employee is working from the employer’s actual premises and is injured there. The telecommuting employee still must prove their accident arose out of employment (e.g., incidental or neutral risk that’s greater than the general public). But courts have found that an employer’s lack of control over the conditions of the telecommuting employee’s work premises is irrelevant.
This is different from situations where the claimant is required to be at the employer’s workplace but was merely getting ready for work at home and injured themselves, which is not compensable. This is also different from situations where the claimant took work home with them from the employer’s premises and injured themselves at home, which is also not compensable.
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As a general rule, an employee’s work commences when he or she arrives at her workplace; the employee is engaged in her own business while traveling to work. Thus, under the going-and-coming rule, absent special circumstances, injuries occurring off the employer’s premises while the employee is on the way to or from work are not compensable. However, there are several exceptions to the going-and-coming rule that extend the employer’s premises under certain circumstances. These exceptions apply “when it would be unduly restrictive to limit coverage of compensation statutes to the physical perimeters of the employer’s premises”.
The COVID-19 pandemic has necessitated an unprecedented shift of large portions of the workforce to remote work, and it remains to be seen just how the court will handle injuries sustained while an employee is working remotely under these circumstances. However, in review of the relevant Iowa case law, it must be acknowledged that the Iowa Division of Workers’ Compensation will generally award benefits if an employee is injured while furthering the employer’s business at the employer’s express or implied direction in the course of the employment.
Accordingly, facts that would increase the likelihood of compensability would be:
- The employer directed the employee to work from home;
- The employer supplied business equipment, materials or support to enable the employee to work from home;
- The continuing presence of business equipment or materials at the employee’s home;
- The employee frequently worked from home during typical business hours;
- The employee had a dedicated office space for conducting the employer’s business;
- The employer compensated the employee for work performed at their home office; and
- Special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.
A detailed fact investigation will need to be promptly commenced once an injury is reported. An employer and their insurance carrier will need to discover what the employee was doing immediately before, at the time of, and following an injury to evaluate compensability. Ultimately, the employer will need to determine “Whose business was the employee pursuing at the time of the injury?” If the employer’s business is being served, the injury may be compensable.
Whether or not a remote workers injury will be found compensable will be a very fact specific issue and depend on if employment services are being performed. One particular opinion from the Oklahoma Supreme Court gives guidance on how the court may view these types of cases. In Brown v. Claims Management Resources, Inc. 2017 OK 13, 391 P.3d 111, the claimant had finished performing job functions, clocked out, and was leaving the office for the day when he was injured while descending an interior stairwell. Brown’s work area was on the second floor of the building where he worked, and CMR occupied the entire floor. Brown was unable to conclusively identify any factor that might have caused his fall. The commission found the injury was not compensable and the Court of Civil Appeals affirmed.
However, the Supreme Court reversed the Commission’s decision and found the injury was compensable and, in the course and scope of employment. In its opinion, the Court discussed at length what constituted “employment services.”
In particular Justice Combs noted, the AWCA does define the term “employment” at 85A O.S. Supp. 2013 § 2(20), which provides: “Employment” includes work or labor in a trade, business, occupation or activity carried on by an employer or any authorized voluntary or uncompensated worker rendering services as a firefighter, peace officer or emergency management worker;
The AWCA does not independently define the term “services”. Black’s law dictionary provides two potentially appropriate definitions for service:
2. Labor performed in the interest or under the direction of others; specifically, the performance of some useful act or series of acts for the benefit of another, usually for a fee. In this sense, service denotes an intangible commodity in the form of human effort, such as labor, skill, or advice. .
3. The official work or duty that one is required to perform. Black’s Law Dictionary, Service, (10th ed. 2014).
Justice Combs went on to conclude that “Employment services should at a minimum be taken to include the performance of assigned duties. In other words, Brown was performing employment services when he was at his workstation performing tasks specifically given to him by his employer to complete. At issue in this cause is whether the definition of “employment services” encompasses something more than the literal performance of specific assigned tasks, and includes other necessities of employment specified by the employer. We think that it does.”
Brown was assigned a workstation that he could only reach, and then leave, by way of either the stairwell on the employer’s premises or the elevator. He was required, upon reporting to work on the premises, to clock in and proceed to his work station just as he was required to clock out and leave it. By clocking out and exiting his second floor work station, Brown was complying with his employers’ instructions and therefore was still performing employment services at the time of his injury.
In conclusion, the definition of course and scope of employment in Oklahoma includes activities conducted at other locations designated by an employer in furtherance of the affairs of an employer that is specifically directed by the employer. Due to COVID-19, the remote workforce has significantly grown. In the majority of these cases, employers have closed the actual office and directed employees to work from home. Given the Courts interpretation of employment services in the Brown case, it is definitely possible for a remote workers injury to be found compensable. However, these cases will be fact specific and the timing, location and circumstance of the injury will have to be evaluated. Since the employer may have limited ability to monitor remote employee activities or to control safety precautions in the employees’ working environment, some employers may choose to establish additional safety measures to mitigate their risk, such as establishing clear working hours and break times so that the employer is not potentially liable for any accidents that occur at any time of day or night.
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Under the Nebraska Workers’ Compensation Act, an injured worker must prove that he or she suffered injuries as the result of an accident both arising out of and in the course of employment. The phrase “arising out of” describes the accident and its origin, cause, and character. The phrase “in the course of” refers to the time, place, and circumstances of the accident. More specifically, this requirement demands that the claimant’s injury occurred within the time and space boundaries of the employment, potentially including a home office. The purpose of the employee’s activity must be related to the employment.
Pursuant to Nebraska case law, it is unclear whether an employee who sustains an injury while working remotely from home has a valid and compensable claim. However, courts have determined that traveling employees are generally within the course of their employment from the time they leave home on a business trip until they return because the travel itself is a large part of the job. In Nelsen v. Arrow Distributing, Inc., the Nebraska Workers’ Compensation Court determined that work performed at home for the convenience of the employee did not make the employee’s commute home from the office qualify as a business trip. 2003 WL 22286851, at *1 (Neb. Work. Comp. Ct. Oct. 1, 2003).
The court will likely consider whether a remote employee’s injury arises out of and in the course of employment while considering similar principles as applied to traveling employees. For example, courts will likely consider whether an employer either directed the employee to work from home or whether the employee was complying with a mandatory stay-at-home order. In Nelson, the court specifically noted that the employee was working from home as a personal convenience and thus, the employee’s commute home was not considered a business trip. Contrary to Nelson, an employee that is required to work remotely may have a valid and compensable claim if the injury occurred while the employee was carrying out work duties and responsibilities from a remote-home location.
This analysis is likely to be fact sensitive and ultimately come down to whether the injury arose out of and in the course of employment. However, the phrase “in the course of” will seemingly take into consideration the employee’s typical work hours, the particular location in which the employee was performing remote work duties, and the circumstances surrounding the incident.
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Though other states have held such claims compensable, there are few, if any, Arkansas workers’ compensation cases where claimants were injured while working from home. However, Arkansas case law tends to suggest that injuries sustained while working from home would compensable, at least to the extent the injuries occur under circumstances that are work-related.
Under Arkansas law, the physical environment where an injury occurs is less relevant to compensability than the question of whether the employee is in fact doing something that is work-related. Put differently, though relevant, the physical location of the employee is not the critical inquiry; rather, the critical inquiry is “whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury.” Wallace v. West Frasier South, Inc. Thus, insofar as the employee is advancing the interest of the employer, working from home should not preclude compensability.
Second, it should be noted that courts consider the practical working conditions of employees when determining compensability and the working relationship between the employer and the employee. Honeysuckle v. Stout (“Whatever employment services means must be determined within the context of individual cases…and working relationships, not generalizations made devoid of practical working conditions.”). As such, one can predict that courts will likely be sympathetic to injured claimants whose only practical option is to work from home, who do so with the approval of their employer, and who are injured while advancing the interest of their employer.
In short, injuries that take place at home, so long as they occur within the course and scope of the employment, are likely compensable. Thus, the rules governing compensability, such as equal exposure rule and the course and scope rule, should apply to at-home work injuries as they have to work injuries that occur at the workplace.
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Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.