From the Workers’ Compensation & Employers’ Liability Practice.
Originally published in The Legal Intelligencer on October 06, 2021.
The stay-at-home orders that resulted from the novel coronavirus pandemic have required courts to address how to handle injuries for America’s nonessential work force while they work from home. Typically, with few exceptions, a work injury in “the course and scope of employment” will be covered under the employer’s workers’ compensation insurance policy. There are established principles in different jurisdictions that may give us insight as to how the courts will apply this concept of employment from home to the pandemic stay at home orders and how courts will likely find based on precedent.
Established jurisprudence looks to the primary critical question, was the injury work related? This inquiry carries with it a multitude of factors, including whether the employer intended/approved the activity, whether the injured worker was required to participate in the activity when injured, and whether any benefit arose to the employer for the activity causing the injury. It is clear that the questions surrounding the analysis are fact driven, and dependent on the specific jurisdiction’s rules for assessing each claim.
A starting point for the analysis is found in Larson’s three-part test, which states that for the determination as to whether a home qualifies as a work site, one must look at: “the quantity and regularity of work performed at home the presence of work equipment at home; and the special circumstances of the employment rendering it necessary, and not merely personally convenient, to work at home, while also considering whether the employer acquiesced to the employee’s use of his or her home as a work site, or reasonably should have known the employee was regularly using the home as a work site.”
Where states have already adopted Larson’s three prong test, or a modified version, for establishing if home qualifies as a work site, the first question we have to ask is how courts are going to apply the test where people are working from home not because the nature of their employment requires it, but because government-mandated shut downs require it. A review of the pre-COVID case law suggests that these courts are fairly uniformly going to treat working from home because the government required it, the same as working from home because the nature of the employment required it.
The intent of the third prong, based on its application, has been to prevent employees from expanding their work site by doing work at home simply because it is more convenient for them. For example, a teacher grading papers at home at night rather than in the school, or lawyers taking work home, has been found to be work done for their own convenience, and does not expand the work site to cover their home.
However, for an employee forced to work at home without accessibility to the office, their residence becomes a bonafide work site if their duties require them to perform regular “office” work and the employer provides no alternative space other than having the employee use their home for that portion of the work duties. Where an employee is now performing all or most of their work at home because the government shut down requires them to, this is more akin to the nature of the work requiring work from home, rather than an employee doing some work from home for their own convenience.
In Maryland, the Court of Special Appeals utilized the Larson test to assess how working from home impacts compensability. See Schwan Food v. Frederick, 211 A.3d 659 (CSA 2019). In Schwan, the employee alleged to have begun his work day from home, where he had a computer and printer set up in his dining room, with WiFi provided at a discounted rate by his employer. The employee utilized the WiFi for a handheld device provided by the employer to coordinate his scheduled visits to local stores.
On the date of accident the employee slipped and fell on ice outside his home while he was walking to his car. He was heading to his first store, but conceded that he was first taking his son to daycare a block and a half off of his route. Following initial denial and then reversal on appeal at the circuit court, the matter was taken to the Court of Special Appeals. There, the employer argued that the employee did not begin his work day at home and was not performing or discharging any work duties at the time of the injury, noting the anticipated travel-to drop his son off at daycare—was a personal deviation. Employee countered that his home was his “base of work operations” and he left home to fulfill work obligations.
The court adopted Larson’s existing three-part test, with modification, and found that the home qualifies as a work site, but remanded to the court below for further fact finding. In addition, the Schwan court held an employee must also show that their work day had already commenced at the time of the alleged work accident.
New York has already adopted a “home office exception” modeled on Larson. Under that exception, in order for the home to achieve the status of a place of employment, one looks to “the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.” see Hille v. Gerald Records, 23 N.Y. 2d 135 (1968). Consistent with the Larson assessment, the New York court of appeals cautioned that such a test should be “applied with caution to professional employees, such as teachers, doctors, lawyers and the like, who have frequent occasion to carry home work of varying degrees of importance and substantiality.”
This “home office exception” has given rise to the first written opinions involving employees injured at home who, but for the ongoing pandemic, would have been working elsewhere. In Employer: County of Niagara, Case No. G274 1913 (Workers’ Compensation Board July 13, 2021), a speech language pathologist was injured at home when she rolled her ankle and then fell down 15 stairs. Prior to the pandemic, the employee was required to begin and end each work day at the office. Otherwise, she traveled to appointments with clients.
Following the state mandated shutdown, the employee was required to work from home and hold sessions with clients via video services. The employer conceded the pathologists were required to work from home due to the mandate by the state to continue to provide services to the greatest extent possible, and the agency did not have the office space or computer technology for pathologists to hold video appointments from the office using their personal computers. The employee worked from multiple spaces in her home, using props during her sessions, some of which were her personal property.
On the date of injury, the employee completed her first video session, and following the cancellation of her next appointment, went upstairs in her residence to procure supplies that she would use in her next scheduled session almost an hour and a half later. She fell down the stairs on the way back down, injuring her ankle.
The employer argued the employee was not engaged in a regular pattern of working from home. The board found the argument meritless, as the employee had been working from home for five months on order of her employer so that they could continue to service clients during the pandemic. The board further found that the employee produced uncontroverted testimony that she had been gathering supplies for her next appointment at the time of the fall, however, the Board’s decision suggested that even if the employee had been on her lunch break and not gathering supplies, the fall would have been compensable since her home was now her place of work and “an employee that remains on the employer’s premises during her lunch break continues to be in the course of employment during her break.”
In Pennsylvania, the Commonwealth Court found a claim compensable because the employee did not leave the premises she was authorized to work at, finding the home to be “a fixed location approved by employer as her secondary work premises.” See Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Alston), 900 A.2d 440 (Commonwealth Court 2006). The court noted that it is well established under the personal comfort doctrine that “an injury sustained during an inconsequential or innocent departure from work during regular work hours, such as going to the bathroom,” is still compensable.
Therefore, the court in Alston held that where the employee was injured during normal work hours, at her “at-home work site which was approved by the Employer” while talking to her supervisor and walking back to her desk to handle the call, the injury was compensable as it occurred in the course and scope of her employment despite any minor deviation for her personal comfort. Ultimately, while the court began its legal analysis as if the employee was off the employer’s premises, it seemed to accept that the home office was now akin to the employer’s premises.
In Werner v. Workers’ Compensation Appeal Board (Greenleaf Service), 28 A.3d 245 (Commonwealth Court of PA 2011), the court continued to apply the personal comfort doctrine to injuries that occurred in an at-home office as if the analysis were the same for injuries in an at-home office and at the employer’s office. The employee, who worked one day of the week at his home office, was found unresponsive at his work desk in his basement. Due to a variety of evidentiary issues, the court held the claim to be not compensable. However, in dicta, the court suggested that had the decedent been working on the day of death, if he had in fact fallen outside while smoking a cigarette, the accident would have fallen under the personal comfort doctrine and the claim would have been compensable, the same as if an employee was injured while on a smoke break working at an employer-owned office.
Based on what we have seen in the pre-pandemic case law, there are three major concerns that employers and insurers face. If courts are ready to treat the home equivalent to the employer’s office building, employers and insurers face the specter of the premises exception and the personal comfort doctrine making any at-home injury compensable if it occurred during the normal work day.
Working from home also raises significant evidentiary concerns. For the personal comfort doctrine to apply, an employee must have been otherwise working at the time they took their break. For salaried employees with flexible hours, often the only evidence that any party has that the employee was working (or not) at the time of the injury would be the employee’s own testimony.
In the final analysis, while it may make sense to find a claim compensable when an employee takes a restroom break or makes a cup of coffee, thus treating the home office as identical to the employer’s office, this ultimately ignores the fact that working from home permits opportunity for employees to perform far more personal tasks than they could previously. While, for example, New York suggests that any injury at home during lunch should be compensable, just as it would be if the employee remained at the employer’s office for lunch, this ignores the fact that an employee working from home under a stay at home mandate could choose to engage in a plethora of activities around the house causing injury without leaving the work premises. For employers and insurers, therefore, moving forward the true test for claims arising under stay at home orders will be how to limit the reach of the premises exception.
Todd E. Saucedo is a principal with Semmes, Bowen and Semmes in the firm’s Baltimore office. He represents employers and insurance companies in the defense of workers’ compensation claims in the District of Columbia and Maryland, as well as claims arising under the Longshore and Harbor Workers’ Compensation Act.
Jillian M. Petrella is an associate with the firm in the workers’ compensation and employer’s liability practice. Her practice focuses on representing employers and insurance companies in the defense of workers’ compensation claims in the District of Columbia and Maryland.