Workers’ compensation claims in a remote work world
The ability to work remotely used to be considered a luxury: a valuable perk that many employees desired, but that most didn’t have. Times have changed, and we now live in a remote work world. Not everyone works remotely—and many who do are not remote all the time—but, undeniably, remote work is more common now than it was before the COVID-19 pandemic.
First, it is important to note that each company will have different employee expectations and parameters based on that company’s unique culture and values. However, most adopting remote work will fall into one of these categories:
The most common remote work model today is the Flexible Hybrid. This requires having a physical space with desks, offices, and meeting rooms that are in a "hoteling" arrangement. Employees must reserve their needed spaces each time they come in, so the same space could have different employees working from it on any given day. Then, at home, the expectation should be that the employee has a private and safe work area with all the necessary equipment to be able to perform their duties.
Risk managers must consider various items surrounding this arrangement at the physical office, such as:
We have an additional set of needs and considerations for the same employees in their homes, as that is now likely considered a work environment from a workers’ compensation perspective on the days they are remote. So, what happens when an employee is injured at home?
Most states require work-related injuries to be both in the “course” and “scope” of employment. Determining the course and scope of employment has always been challenging, especially for employees traveling at company events or who travel for work.
“Course” or “arising out" of employment requires there be a work connection to the illness or injury. So, a seizure caused by a personal medical connection does not arise out of employment, even if it happened at the worksite. “Scope” of employment refers to time, place,and circumstances of the accident. In most states, an employee who works in a fixed location injured on the way to work is not in the course and scope of employment.
During COVID-19, when all or most of the workforce was at home, the concept of course and scope completely transformed. Some of the most common risk factors associated with remote work that impact claims are ergonomic issues from makeshift workstations, lack of direct supervision leading to unsafe work practices, mental health challenges due to isolation and work-life boundaries, and difficulty distinguishing between work and personal time. Because workers’ compensation cases can get through the system faster than liability claims, we do have some direction from the courts.
Around the States
In New York, an employee was injured carrying office equipment up a flight of stairs. He alleged the employer refused to purchase the equipment. The employee was authorized to work at home. He also admitted the accident occurred during his lunch hours. [See 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.)]. The first and second levels of the Workers’ Compensation Appeals Board found that the employee was not in the course of employment.
The appeals division disagreed, stating that “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.” Therefore, Capraro was injured during his regular work shift at his workplace and should be considered for workers’ compensation based on the traditional set of standards—not standards that treat workers at home differently than those who work from a designated work site.
In remitting the decision back to the Workers’ Compensation Board, the appeals court recommended that the board accept that a “short break or some similar ‘momentary deviation from the work routine for a customary and accepted purpose’ does not constitute an interruption in employment sufficient to bar a claim for benefits.” Therefore, Capraro did not sufficiently interrupt his work time when moving the boxes.
A similar result occurred in a Kentucky case where an employee fell and injured her ankle and knee after getting up from a recliner. At the time of the fall, the employee alleged 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. (See Bluegrass.Org v. Higgins, No. 2018-CA-001262-WC, 2019 Ky. App. Unpub).
Contrast this with a Florida decision where an employee working from home tripped and fell while getting a snack. The court found she was within the legal bounds of the personal comfort doctrine, but also found the case not compensable because she tripped over her dog. [See Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133, 1135 (Fla. Dist. Ct. App. 2019)].
Managing the Risks
What can employers do to help reduce litigation risks for work at home employees? The most important process is a work safety checklist that includes requirements for employees to have a safe, designated work area clear of trip hazards with computer, chair, and keyboard set up ergonomically. In some states, employers have the right to inspect home-work areas, including determining that cables and electrical cords are secured to the floor or wall with secure area rugs, and that other common safety procedures for the job site that have been handled. If allowed, the employer should establish the right to audit the employee’s workspace to ensure that it complies with safety standards of the employer.
Finally, we recommend a work-at-home agreement clearly identifying the employee’s work schedule, expected availability during business hours, and designated work area. The agreement should include details of required frequency of communications; what they are responsible for purchasing and maintaining, instructions on how to request equipment or ergonomic evaluations; and should advise the employee of the requirement to report all personal injuries, including details around who they should contact and where they should go for treatment. This last piece is vital for early claims management, which, for remote work claims, is the most critical component due to the unique challenge of investigating a remote accident scene or obtaining witness accounts.
As we all know, prevention is the best way to mitigate workers’ compensation costs, so be sure to offer remote ergonomic assessments and support, encourage regular breaks, promote a healthy work-life balance, have consistent and dedicated check-ins with your remote employees, and provide resources for mental health support and wellbeing.
As larger threats loom, pressure grows on litigation execs and attorneys to untangle the thorny issue of billing guidelines and adjustments
Cheryl Wilke is a managing partner in the Fort Lauderdale, Florida office of Lewis Brisbois. cheryl.wilke@lewisbrisbois.com
Angela Cabado is director, risk management at Marriott Vacations Worldwide Corporation. Angela.Cabado@mvwc.com
