In response to the world-wide coronavirus epidemic, one of
the most remarkable societal changes taking place in America today is the ubiquitous
transition from working in an office to working from home. The deadly coronavirus is forcing this change,
but many think that even when this crisis passes, American businesses will start
to reevaluate the advantages of telecommuting given the incredible technology
we all have at our fingertips and the potential cost savings in office space. As tens of millions of new home-based employees
carry on their daily work tasks, many clients have begun to ask about the
ramifications for workers’ compensation.
The questions this practitioner is receiving almost daily are whether
home workers are covered under workers’ compensation and if so, under what
circumstances?
The starting point on this discussion is N.J.S.A. 34:15-36,
which provides that employment commences when one arrives at the employer’s
place of employment. However, the
statute continues that when an employee is required by the employer to be away
from the employer’s place of employment, that employee is in the course of
employment when engaged in the direct performance of duties assigned or
directed by the employer.
In one reported case involving a salesman, the court recognized that the home can be considered the petitioner’s primary place of employment. Wilkins v. Prudential Insurance and Financial Services, 338 N.J. Super. 587 (App. Div. 2001).
Surprisingly, there are not many reported cases dealing with home injuries, although one may safely surmise that this may be about to change. In Kossack v. Town of Bloomfield, 63 N.J. Super. 322 (Law Div. 1960) the court ruled for a police officer who injured himself cleaning his service revolver at home. The court found that the officer had a duty to keep his revolver clean, noting that the municipality placed no limitations on time or place in regard to this duty.
In another case involving a police officer, the petitioner was working the 7:00 p.m. to 7:00 a.m. shift and got permission from her Sergeant to drive home for dinner while on duty so long as she remained in radio and telephone contact. The officer finished her meal, headed out the door of her home, and slipped and fell on black ice on her property. The court found for petitioner on the grounds that the accident occurred in the course of her employment because she was authorized to take her meal at home. DeCoursey v. Tp. of Randolph Police Dept., No. A-0915-06 (App. Div. Aug. 14, 2007), certif. denied, 193 N.J. 222 (2007).
Most home injuries involve traumatic events like a slip and fall, but the New Jersey Supreme Court considered an interesting occupational disease claim several years ago, focusing on an employee who worked extensively on her computer at home. In Renner v. AT&T, 218 N.J. 435 (2014), Mrs. Renner was authorized to work from home three days per week. She was working on a deadline project and stayed up and worked all night. At 7:50 a.m. Mrs. Renner took her son outside to catch the school bus and grabbed her leg in pain while walking out of the house. At 9:00 a.m. she sent an email to a co-worker stating that she did not feel well but would complete the project. At 11:34 a.m. she called the Edison Township EMS stating that she could not breathe. She was pronounced dead on arrival at the hospital from a pulmonary embolism.
The expert retained by Mrs. Renner’s dependent husband
testified that sitting at a desk for many hours contributed to the decedent’s deep
vein thrombosis and death. The Supreme
Court accepted the testimony of respondent’s expert that the death was not
caused by work activities and was not a compensable occupational disease. The Court accepted the notion that petitioner
could be covered for workers’ compensation purposes while working at home, but the
court concluded that in this case there was no causation between prolonged
sitting and her fatal pulmonary embolism.
One can safely state
that under New Jersey law, injuries that occur in the course of working at home
are on equal footing with injuries that occur in the course of working in the
traditional office. Yet there may sometimes be surprising differences:
- Consider two employees: Employee W is injured in a large office space
leaving her immediate work station to converse with a friend on the opposite
side of the office. She slips and falls near her friend’s work station, 30
yards away. Employee H is working in a
study at home and walks upstairs during a break to speak with his son who is
home sick. He slips and falls in the
bedroom. Both employees suffer a broken
arm. Would both cases be compensable?
Employee W would be covered because
she is on the work premises during work hours when she falls. New Jersey has a strong premises rule. But Employee H is now outside the study where
he works and is upstairs in his house. Would
you consider the entire house to be the work premises? Is that the intention of any employer who
authorizes telecommuting? Does the
employer lack any formal document at all about what is considered the work
premises?
- Suppose Employee W takes a break at 10:15 to get
coffee at the on-premises office cafeteria and is jostled pouring the coffee,
causing severe burns. The same thing
happens to Employee H at home in his kitchen.
Is the kitchen part of the work premises?
In the office scenario, Employee W’s burns
will be found compensable under the mutual benefit doctrine because there are
some activities that benefit both the employer and employee. Coffee breaks are
one of them. Further, the employee
cafeteria is on the premises. An
off-premises slip and fall by Employee W at a Wawa during a break would not be
compensable, however.
But what about Employee H? The court in Cooper v. Barnickel Enterprises, 411 N.J. Super. 343 (App. Div.), certif. denied, 201 N.J. 443 (2010) found that a master plumber who worked on the road was covered when he was injured on his five mile drive to get a cup of coffee while on break. The theory was that someone who works outside an office should have the same opportunity for coffee breaks or restroom breaks as one who is in the office. Does Employee H have a strong argument that he should be treated the same as someone in an office? Probably yes although there is no reported case on point.
You can immediately see that the absence of any
documentation about home office expectations is problematic. So what actions can employers take to get
some measure of control over home injuries?
After all, there are not likely to be witnesses to home injuries other
than family members, and there are no security cameras to verify the mechanism
of injury or location of injury. This
practitioner recommends that employers consider the following issues in
connection with a written understanding for employees who are approved to
telecommute.
- Does the employer intend to authorize the entire
home as the work site? If not, it would be important to put in writing the
specific locations that the employee will conduct assigned business, perhaps a
home office or the kitchen table but not the rest of the house. That will avoid
claims for slips and falls in the driveway while walking to get personal mail
or falls in the basement while checking the heater.
- Are there specific hours that the employee is
permitted to work or does the employer allow work at any time suitable to the
employee?
- Will the employee be required to clock in online
and clock out when finished for the day?
- Is the employer responsible to supply and repair
equipment such as printers, computers, and fax machines? Will the employer provide ergonomic assistance
to home employees if that is also offered to office employees who experience
arm or wrist pain?
- Employers should make clear that all the normal
reporting requirements must be followed when an injury occurs to a
telecommuting employee arising out of the employment. Same day notice is recommended so that the
employer can contact its third party administrator or carrier for investigation
and, if appropriate, direction of care.
This practitioner is of the opinion that
telecommuting is here to stay in much larger numbers. Financial considerations, traffic
considerations, environmental considerations, and enhanced productivity related
to elimination of commuting time all favor the rapid ascent of telecommuting. From a workers’ compensation standpoint, the
number of home injuries is likely to be far less than those in traditional
office locations particularly if the employer at a minimum designates a
specific area where work is authorized.
The post The Brave New World of Telecommuting and Workers’ Compensation appeared first on NJ Workers' Comp Blog.
