Providence, RI (March 8, 2022) – The ongoing COVID-19 pandemic has led to a dramatic increase in the number of employees working from home on a part-time or full-time basis. “Hybrid” working arrangements – where employees work remotely one or more working days a week – are expected to remain a norm in the workplace long after the pandemic is over.

Due to the increased availability and desirability of remote working arrangements, employers have been forced to consider potential impacts to their operations that they may not have previously considered. One such impact discussed here is workers’ compensation claims made by employees working remotely.

Most workers’ compensation laws were enacted in the early 1900s, long before the advent of computers and the Internet. These statutory schemes were intended to compensate workers for illnesses and injuries sustained in a workplace outside the home and under the control of the employer. The drafters of these laws could hardly have imagined how they would be applied to industrial accidents occurring in an employee’s home.

This alert will dig deeper into whether employees working remotely are covered by workers’ compensation laws and highlight evolving coverage considerations in case law. We will also assess if and when your home qualifies as a workplace for the purposes of coverage. Finally, this alert will highlight best practices for minimizing the workers’ compensation risk associated with remote workers.

Are remote workers covered by workers’ compensation insurance?

Generally, an employee is covered by their employer’s workers’ compensation insurance if they are injured while working from home, provided they meet their burden of proving that the injury was work-related. . However, state law governs workers’ compensation coverage and these laws vary from state to state.

Some states do not require employers to obtain workers’ compensation coverage, while others explicitly require all employers to obtain coverage. New York, for example, requires workers’ compensation insurance for all employers. To see NY CLS Work Comp § 10. However, “[t]he heart of all compensation law, and the source of most compensation disputes, is the coverage formula. Forty-three states and the Dockworkers’ Compensation Act have adopted the full formula of British compensation law: “arising out of and in the course of employment”. To see 1 Larson’s Workers’ Compensation Law § 3.01 (2021) (emphasis added).

“arising out of and in the course of” employment

Connecticut, Massachusetts, New York, and Rhode Island all follow some version of the “arising and during employment” rule. Although there is a test that the injured worker must meet (i.e. whether there is a “work connection” to the employee’s illness or injury), “to facilitate the building, the expression [has been] divided into two, the ‘resulting from’ part being interpreted as referring to the causal origin, and the ‘course of employment’ part to the time, place and circumstances of the accident in relation to employment” . Identifier.

In determining whether a remote worker‘s injury “arises” from their employment, the court or administrative body’s investigation will focus on whether the employee was furthering the goals or acting in the best interests of the employer at the time of the injury. Courts tend to be quite liberal when making this determination “flowing from”.

In a recent example, an employee carrying boxes of new home office furniture up the stairs of his house, after the employer specifically refused to purchase the new office furniture, claimed an injury covered by the compensation accidents at work. The New York Supreme Court sent the case back to the Workers’ Compensation Board to determine, in accordance with case law, whether the activity was “sufficiently work-related” even though the employee was on a lunch break at the time of the injury. See Capraro v. Matrix Absence Mgmt., 2020 NY Slip Op 06000, ¶ 1, 187 AD3d 1395, 1397, 132 NYS3d 456, 459 (App. Div.). In another case, an employee fell and injured her ankle and knee after getting up from a recliner. At the time of the fall, the employee alleged that she was on the phone with a customer and was walking to retrieve her car keys to retrieve documents completed by the customer. In this case, the employee was entitled to a rebuttable presumption that the fall occurred while she was carrying out a work activity. See Bluegrass.Org vs. Higgins, no. 2018-CA-001262-WC, 2019 Ky. App. Cancel ad. LEXIS 413 (Ct. App. June 7, 2019).

Older workers’ compensation doctrines are now being applied in new and interesting ways to determine whether a remote worker’s injury occurs “in the course of” their employment. In jurisdictions that recognize the “personal comfort doctrine”, activities necessary for an employee’s personal comfort or well-being do not preclude an employee from being considered “at work”. In the context of remote work, an employee may incur compensable workers’ compensation as they head to the kitchen for a quick snack or to the restroom between Zoom meetings. Similarly, under the “come and go” rule, compensation is generally denied for injuries sustained by an employee while traveling between home and work. However, now that home and workplace can both be considered “places of work” (as discussed below), injuries sustained while traveling to/from home can now be considered compensable. .

The home as a “workplace”

Prior to COVID-19, whether an employee’s home was considered their “workplace” generally depended on whether the employee had authority or employer approval to work from home . In New York, for example, “[a] the “regular work-from-home scheme” makes the employee’s residence a “workplace” in the same way as any traditional workplace maintained by the employer.” Capraro case132 NYS3d at 459. The Florida District Court of Appeals held that when the employer knew and approved of the employee working from home, “[a]accidents occur “in the course and scope of employment” when they occur “within the period of []job, in a place where [the employee] would be reasonably, while fulfilling its functions. “” Sedgwick CMS c. Valcourt Williams, 271 So. 3d 1133, 1135 (Fla. Dist. Ct. App. 2019). The Florida court determined that a woman on a coffee break while working from home “was where she ‘reasonably would be'” at the time of the injury, but ultimately found that her injury was not compensable because that she had tripped over her dog. Identifier.

Courts are likely to be more lenient in determining whether home is an employee’s “workplace” where the employee alleging a work-related injury was working from home due to a “shelter in place” of federal, state or local public health. or a quarantine order or work-from-home directive imposed by the employer after the employee’s office is closed. The need to comply with these orders and directions effectively establishes that the employee’s home has become his “workplace”.

Best Practices for Minimizing Workers’ Compensation Risks

The best defense against workers’ compensation claims involving remote workers is proactive injury risk management. Here are some common sense steps employers and HR professionals can take to ensure the health, safety and productivity of their remote workers:

• Provide a workplace safety checklist: Many employers provide their remote employees with a security checklist to help them assess the overall security of their work environment. Here are some common questions employees may need to consider:
  – Is the floor surface clear and free of tripping hazards?
  – Do the file drawers open onto the travel paths?
  – Are phone lines and charging cables secured under a desk or along a wall?
  – Are rugs secured to the floor and free of frayed or worn seams?
  – Is there a working smoke detector near the workspace?
  – Are heaters and space heaters located away from flammable objects?
  – Are electrical plugs and outlets in good working order with no exposed or damaged wiring?
  – Does the office chair provide adequate lumbar support?
  – Is there adequate lighting?
  – Have the screen and keyboard been installed ergonomically?




• Inspect the home office: Employers should consider inspecting the employee’s home office to confirm that it is safe and suitable for work. Employers may want to document these inspections.




• Designate a dedicated work area: If possible, employees should be required to have a dedicated work area. This helps to minimize the risk of injury. It also helps them stay focused during the working day.




• Maintain regular contact: Regular communication is essential to the success of a remote work arrangement. If regular communication is not maintained, employers may not be notified of work-related accidents and injuries in a timely manner. Additionally, remote workers who feel disconnected from the workplace tend to be less productive and more accident-prone.




• Developing a remote work agreement: For remote work arrangements to be successful, employers need to be clear about their expectations from the start. It is recommended that employers specify their expectations in a remote work agreement signed by the employee. Recommended things to have in a remote work agreement include:
  – The employee’s work schedule;
  – Expected availability during business hours
  – What constitutes the employee’s designated work area;
  – Frequency of communications with the employer;
  – The need to report all bodily injuries; and
  – The right to audit the employee’s workspace to ensure that it complies with safety standards.

*A version of this alert was originally posted by the North East Employers Association (EANE).

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.