November 22, 2021Share
Working from Home: Avoiding the Curse of the Injury-Prone Employee
By: Amy Siegel Oran.
The “new normal.” It is a phrase we have all seen, heard, and admittedly used to describe our post-COVID world; how that is defined remains to be seen. However, as we see the decrease in infection rates and people engaging in more activities out of the home, there remains a significant number of people who now work from home. Companies are realizing that the overhead cost of an office may not be justified or that the time spent commuting is not fair to their workforce. Childcare remains a significant barrier to bringing people back into the office environment and for many of us, we will become either full or part-time employees working out of our personal home offices.
With all change comes questions and in our practice of workers’ compensation, we are inevitably going to be seeing an influx of claims reporting injuries sustained in the home, but purportedly still related to work. It is a very difficult line to draw. In fact, a Gallup poll revealed 33% of workers believe they are “always” working remotely and 25% are “sometimes.” Frankly, I do not foresee any Court finding that all time at home is considered working hours, and maybe not even necessarily all time between 9:00 am and 5:00 pm. I anticipate this will be a case-by-case analysis and Employers, Carriers, and Courts will have to take a number of factors into account. For example, what was the person actually doing the moment the injury occurred, did the work cause the accident, or was there merely an incidental connection, was there a deviation from the job, and if so, was it reasonable?
Fortunately, this is not entirely new territory, courts across the country have already seen these questions pop up and the outcomes vary. As we practice workers’ compensation law in Florida and Illinois, here are two brief case studies for consideration.
Florida: The Sunshine State has the 4th greatest work-from-home population in the Country; pre-pandemic about 20% of its residents believed they could do their job from home, whereas that number is now over 70%.
In 2019, the First DCA issued an en banc opinion in the case of Sedgwick and The Hartford v. Valcourt-Williams. Ironically, Ms. Valcourt-Williams was employed as a workers’ compensation adjuster who worked from home. During the course of a workday she got up from her desk to get a cup of coffee, and as she did so, she tripped over her dog, leading to an injury. It is a completely normal activity for an employee to get up and get a cup of coffee, so the action in and of itself would not be considered a deviation. The legal battle involved debate over exactly what constituted work and how to reach the answer. The Court wrote, “the question is not whether a claimant’s “home environment” becomes her “work environment”; the question is whether the employment—wherever it is—”necessarily exposes a claimant to conditions which substantially contribute to the risk of injury.”
Ultimately, the defendant Employer prevailed as it was determined that the particular risk to which the employee was exposed, the dog, would exist regardless of whether she was working from home at the time of the injury or not working from home at that moment. The Court concluded, “it existed before Valcourt-Williams took her job, and it will exist after her employment ends (so long as she maintains a home with a dog). Because the risk did not arise out of the employment, we must reverse.”
Illinois: In the Land of Lincoln, pre-pandemic, only about 3,000 state employees worked from home, whereas that number is now believed to be over 21,000.
In 2018, the Illinois Appellate Court tackled the issue of whether a work-from-home injury related to an employer-provided ergonomic chair was compensable. In Garrett v. The Illinois Workers’ Compensation Commission, Mr. Garrett, an employee of Liberty Mutual, had been working from home since 2006, sitting in an ergonomic office chair that his employer had specially ordered for him. His lower back began to hurt almost immediately, and he believed that the chair was responsible for the pain. By 2013, his lower back pain was so bad that one day when he was reaching to grab some paper, his back went out and he could not stand up. He subsequently needed surgery.
Mr. Garrett argued his injury was compensable because it was a repetitive trauma injury caused by the ergonomic chair his employer had provided him with and it occurred while he was performing his job. The Court reviewed all relevant facts, including the employee’s entire work-from-home setup. Ultimately, the Court denied his claim for a failure to prove that the injury was work-related. The Court stated, “For an injury to have arisen out of the employment, the risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment.”
Although the employee was working when his back went out, the act he was performing when he was injured was not one he was instructed to perform or had a duty to perform. The evidence only showed that Mr. Garrett had been sitting in an ergonomic chair that had been specially ordered for him right before he got up. His action of rising from his chair was insufficient to establish a work-related injury. The employee would have been equally exposed to the injury even if he had not been performing job duties.
Avoiding Liability: What protections do employers have against a rush of these claims? Do companies need to take the injury-prone employee into account to a greater degree when considering allowing or promoting work-from-home policies? As these will always be fact-specific claims, there is no right or wrong answer, but that does not mean we are helpless. Avoiding a problem is always better than solving it. Ensure your company has a well-drafted work from home program. Unless your expectations are clearly defined, an employee can misunderstand and that may give the Judge more leniency in his or her assessment of case facts.
Consider implementing these tips that would offer better protections from worker’s compensation claims:
- Your program must define working hours from those that are not and must advise non-exempt employees they may not work from home off-hours.
- Work tasks should also be defined in terms of time, scope, and responsiveness deadlines.
- Require home office spaces to fulfill certain requirements to ensure safety; including away from additional hazards and ergonomically designed. All equipment should be provided by the company and employees should not be permitted to use their own; proper use instructions must be provided therewith.
- Conduct monitoring, requiring submissions of photos of the workplace, checking clock-in and clock-out hours, ensure consistent work pace and quality, review safety protocols on a regular basis. Reprimand any violations of company work from home policy.
- Review all proposed policies with legal counsel prior to enactment to ensure everything is consistent with the applicable laws and to ensure the policies do not unfairly benefit or hurt any segment of your employees.
This is the broad-stroke guide to protecting your company; but, every company is different and all employees are different. Regardless of your industry, safety is and always should be a top priority; it matters not whether your employees are standing in your plant, working in your factory, or sitting in her or her home office.
Our workers’ compensation attorneys are happy to discuss these issues further and can help you implement a successful work from home program in Florida or Illinois.
Contact Amy Siegel Oran at:
Phone: (800) 718-9865
DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.