Authored By: Bruce H. Albert, Firm Managing Partner, Albert & Mackenzie, LLP
Are employers liable for injuries sustained while an employee is working from home during the COVID-19 outbreak with Shelter-In-Place directives of the government?
Probably. Workers’ compensation benefits extend to employees injured while working from home, provided the injury was sustained while performing a service arising out of and in the course of the employment and the circumstances of the employment, not purely for the convenience of the employee.
Typically, in order for the home to be considered a “jobsite”, the employee must be directed to work from home, either expressly or impliedly.
Further, if the circumstances of employment render the home a second jobsite, then the “personal convenience doctrine” extends coverage to those injuries sustained while performing acts for the employee’s personal comforts and convenience while working.
In the wake of the COVID-19 breakout, some employers are required to close their doors and require employees to work from home. In those cases, the home would most likely be considered the secondary jobsite. Similarly, due to the Shelter-In-Place regulations, the decision to work from home may be to the employer’s benefit and not be based solely on the employee’s personal preference. And where an ‘essential business’ keeps its doors open during the COVID-19 outbreak, but allows its employees to work from home, those employees can also argue that their home is a secondary jobsite for purposes of claiming workers’ compensation benefits, if the work from home was mutually agreed upon with the employer.
In order for an injury sustained at home to be covered by Workers’ Compensation, the home must be a jobsite and the employee must be performing a service arising out of and in the course of the employment.
HOME AS A JOBSITE:
A court will find that the performance of work at home makes the home a jobsite where there is an express or implied requirement that the work be completed at home.
In Santa Rosa Junior College v. WCAB (Smythe) 40 Cal. 3d 345 (1985), the California Supreme Court visited the issue where the injured employee regularly worked from home, many of the employee’s colleagues worked from home, and the employer did not expressly condemn or approve the behavior. The court held that “a home does not become a second jobsite simply because one’s employment requires long working hours and the employer knows that the employee frequently brings work home.” The employee must be directed, explicitly or implicitly, to work from home.
PERSONAL COMFORT DOCTRINE:
Provided an employee can demonstrate that the employer impliedly or expressly required the employee to work from home, or expressly agreed the employee could work from home, rules that would normally apply to injuries sustained at the place of employment also apply to injuries sustained at home. This includes the personal comfort doctrine. The personal comfort doctrine extends compensation to those injuries sustained while acts which are performed for the employee’s personal comfort on the employer’s premises. In Santa Clara Valley Transportation Authority v. Workers’ Compensation Appeals Board (Tidwell) 82 Cal. Comp. Cases 1514 (2017), an employee working from home was injured while using the restroom. Since the home was the “mutually agreeable workplace,” it occurred “at a time where she was working,” and that the employee was injured while addressing “her most basic personal and incidental need during her workday,” the injury fell under the personal comfort doctrine and was therefore compensable.
In Santa Clara, the Applicant requested that she be allowed to work from home because she could not wear shoes due to her medical condition, and the cuts on her feet could get infected on the Defendant’s bathroom floor. After she was injured at home, the Defendant attempted to argue that working from home was not a requirement for her employment. The Court reasoned that the Defendant’s argument was misplaced because 1) the applicant’s continued employment was for the benefit of the employer and 2) the Defendant’s unambiguous agreement that the applicant could work from home carried “greater significance than whether or not the applicant was required to work from home”.
Extending this to the current COVID-19 situation, it is likely that most employers in this climate, if not expressly, then impliedly, agree to let their employees working from home, ultimately for the benefit of the employer and therefore, even if there is no set requirement to work from home, any injury, while performing job related duties, would likely be considered industrial.
The core analysis at the heart of every workers’ compensation claim remains, regardless of location, is that the injury must arise out of and be in the course and scope of employment activities. With Covid-19 mandating a shift to telecommuting in order to comply with shelter-in-place regulations and/or closure of job sites, the home has become a secondary jobsite at the express or implied direction of some employers. Even if employers remain open and are considered ‘essential businesses’, but still allow employees to work from home, even for their personal comfort, they may be liable for injuries sustained by the employee at home, based on the Santa Clara decision, if there was consent and a ‘mutual agreement’ that the employee could work from home.