Navigating Worker’s Comp and
Working-From-Home During COVID-19
Since the beginning of COVID-19, more and more workplaces have been switching over all or in part, having workers work from home. While convenient this new remote world is already raising questions over worker’s comp issues.
Robert Fitz-Patrick is a partner/shareholder at the national law firm Hall Estill. He says over the last few months, he’s been receiving more calls from companies to help better define worker’s comp policies since so many of their workers have had to go remote. Of this he says,
“One area of life that the Coronavirus may have irrevocably changed in the United States is the increased prevalence of employees working remotely, from home. The traditional concept that employees perform their jobs at the employer’s worksite is undergoing reevaluation, for employees who can do their jobs remotely. It seems likely that even when the pandemic has become a thing of the past, traditional workplace location arrangements will be significantly impacted in the long term, and the percentage of those doing remote at-home work will substantially increase over historical levels,” Fitz-Patrick says.
“For many remote workers, the home becomes their workplace, for most or all of their day. That scenario raises questions with regard to workplace safety and employer workers’ compensation liability. If the remote at-home worker breaks a wrist — after tripping over their sleeping dog when reaching for a file folder, while working on a work-related presentation — will the employer’s workers’ compensation insurer have to provide medical and indemnity benefits to that employee under most state workers’ compensation statutes? While answering the question of whether the employer has workers’ compensation liability for work-at-home injuries will generally depend on the facts of the injury, the answer to the questions will often be yes, even in the trip-over-the-dog scenario. This raises several potential issues which employers should consider,” Fitz-Patrick says.
“Compensability for a potential work-related injury under many state workers’ compensation laws is broad, and generally applies to accidental injuries which arise out of, and occur in the course of, employment. This standard is applied broadly to the vast majority of injuries which occur while the employee is on the employer’s premises. Even injuries associated with “personal comfort” activities such as breaks from the employee’s ordinary job duties fall within the broad reach of compensable injuries, when the injuries occur on the employer’s premises. Ultimately, if a broad range of potential injuries is covered by workers’ compensation while the employee is on the employer’s premises, it seems likely a similarly broad range of potential injuries will be covered when the employee is working at home,” Fitz-Patrick says.
“To determine whether an at-home injury arises out of or occurred in the scope of employment, courts will focus on how the injury occurred, and closely examine the work-related task the employee was engaged in when the injury occurred, as working from home offers more opportunity for non-work related activity than does work at the employer’s workplace. However, given that the workers’ compensation laws are often enforced with the goal of providing compensation to injured employees, it is likely that many at-home injuries will be deemed compensable by workers’ compensation courts,” Fitz-Patrick says.
“In light of the exposure to injury claims from work-at-home employees, employers should consider potential risk mitigation issues, including workplace safety (because the employer cannot effectively control the at-home workplace) and injury reporting (because many at-home injuries will not be witnessed). Employers can develop work-at-home policies, which dictate among other things that the employee create a dedicated safe work space for work-related tasks. Work-at-home job descriptions can also help define the scope of the at-home employment,” Fitz-Patrick says.
“The employer’s work-related injury reporting requirements should be supplemented to account for at-home injuries. Remote employees should be required to report an at-home injury and provide an incident report as soon as possible. Consistent with the employer’s post-injury policies and protocols developed with the workers compensation insurer, employees injured while working at home should be required to seek immediate medical care. Also, as with any workplace injury, the employer should immediately notify the workers’ compensation insurer about the at-home claim,” Fitz-Patrick says.
