“Do I have to pay workers’ compensation benefits to an employee who trips on her dog and injures her knee while working from home?” This may not be the first question on employers’ minds as they adjust to the new norm of working from home. It’s something you should start thinking about, however, as the new work-from-home operations get up and running during the COVID-19 outbreak. The answer, though—as is the case with many legal questions—is, it depends. The situation is highly fact-intensive, and the law doesn’t yet provide any clear guidance. But there are steps you can take to protect your business from liability and employees from injuries. Read on for guidance on where the law stands and what you should do.

Injuries in the Course of Employment

An employee who is permitted to work from home and injured while doing so is generally compensated in the same way she would be if the injury had occurred on the employer’s premises. The compensability of a work injury (whether at work or at home), however, depends on various factors, including whether:

  • An employer/employee relationship exists; and
  • There is a causal connection between the injury and the work that was being performed.

While all of the factors are necessary to have a compensable work-from-home injury, the compensability typically turns on whether the injury occurred “in the course of employment.”
Was the employee performing services incidental to employment at the time of the injury? This may be a fairly straightforward situation in the case of an employee who is clocked in and at the office, but the situation is complicated and highly fact-intensive when he is working from home.
For example, imagine an employee who claims benefits for a work injury sustained while she was working late one night and tripped over her son’s toys as she was walking over to the printer to retrieve a work document. If she doesn’t have designated work hours or a work-space, the injury would arguably be compensable. The key would be whether she was performing a task incidental to employment at the time of the injury—in this case, walking to the printer to retrieve the document.
One way you may be able to mitigate the situation is by requiring set work hours. This may not completely negate liability because employees don’t necessarily need to be in pay status or clocked in to have a work injury. They must simply be performing services incidental to employment. Having set work hours, however, can provide your business with an argument.
Additionally, you can minimize work injuries and the potential for claims by establishing policies for designated work-from-home locations that are clutter-free and ergonomically acceptable.

Personal Comfort Doctrine

Injuries that occur while employees are taking a short comfort-related break may also be compensable. The “personal comfort” doctrine recognizes they need breaks to “minister to various necessities of life.” They include, but aren’t limited to, going to the bathroom and taking a lunch break. If an employee is injured while taking a break for personal convenience, whether or not she is working on your premises, the injury will likely be compensable.
Injuries that occur when an employee “deviates” from employment, however, aren’t covered by workers’ comp. An employee deviates from employment when she abandons her job duties to perform an act for her own purpose.

There is no “bright line” to delineate whether the break is so long or so beyond ministering to the necessities of life that it constitutes a deviation from employment. For example, an employee who steps away from her desk to get a cup of coffee from her kitchen may be considered to be ministering to the necessities of life. The employee may be considered to be deviating, however, if she decides to stop working and instead drive to a shop to get coffee.

But imagine if the employee asserts she drove to the coffee shop so she could stop at the post office next door to mail a work package that needed to go out that day. In that situation, she may be considered to be performing a dual purpose, making the otherwise noncompensable coffee break compensable. There is simply no clear line to determine when an employee has stepped over the threshold and is no longer covered under workers’ comp law.

Bottom Line

The case law in this area simply isn’t developed enough to establish clear rules to determine when an employee is still in the course of employment. You can take steps, however, to help mitigate the risk and liability. Although it isn’t possible to eliminate all potential safety hazards for employees working from home (just as it may not be possible at the office), you should promote a safe environment:

  • Require employees to have a dedicated workstation meeting certain ergonomic requirements (e.g., an appropriate desk and chair and an area free of clutter and hazards).
  • Provide a safety checklist or training on proper ergonomics when working from home.
  • Consider establishing clear work hours and break times.

Finally, you should have written policies requiring injuries to be reported immediately. It’s especially important in work-from-home situations, where there may be no witnesses to the incident, that you ask detailed questions to document exactly what occurred and what the employee was doing before, when, and after the injury occurred.

This article, slightly modified to note recent updates, was featured in the June issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.