Workers' Compensation

Mobile Workforce Issues: Home-based Employees and Traditional Workers Subject to Same Standards

By John Stahl, Esq.

The phenomenon of roughly 20-percent of employees nationwide telecommuting at least part-time has required that workers’ compensation professionals routinely determine the extent to which harm that a telecommuter sustained met the basic workers’ compensation requirement of arising out of and within the course and scope of that person’s employment.

The obvious issue related to determining when a home-based individual transformed from being someone who was engaged in household activities into an employee performing tasks that furthered an employers’ business interests. A related issue was whether relevant harm that indisputably occurred while the employee was working possessed an adequate nexus with the employment to be compensable.

The analysis of those topics applied as well to employees who worked in the rapidly disappearing “big comfy chair” Starbucks and people who sustained harm while engaged in business travel.

These questions, and many more, were answered in a November 9, 2012 session entitled “The New Mobile Workforce” at the 21st Annual National Workers’ Compensation & Disability Conference. Roger Levy, Esq., of Laughlin Falbo Levy & Moresi, San Francisco, CA, moderated the session.

The panel consisted of defense attorney Stuart Colburn, Esq., from Downs Stanford, Austin, TX, and Alan Pierce, Esq., from Alan Pierce & Associates, Salem, MA.

Relevant Workers’ Compensation Principles

Pierce cut right to the chase in stating “the definition of what is compensable in its broadest sense, the injury must arise out of and in the course of employment … somebody’s walking down the factory and falls, you are in the course of your employment.” He then discussed the portion of the compensability requirement that related to the necessity of adequately showing that the relevant harm occurred under circumstances that justified concluding that that injury arose out of the employment. 

Identified questions, which were particularly relevant to telecommuters, related to the above inquiry included:

  • Are you at the workplace?
  • Did the nature of the employment conditions cause the injury?
  • Were you furthering your employer’s business interests when the relevant harm occurred?

Colburn explained the principles, including the no-fault aspect of workers’ compensation, by stating that the theory was that “work puts you at greater risk. Work made you come to their [the employer’s] job site. So it is their risk.”

“Arising From” and “Course and Scope of” Aspects of Telecommuting

Levy shared the following statistics from 2008 to illustrate the size of the telecommuting population:

  • 17.2 M Americans work from home
  • 40-percent of employers offer telecommuting as an option
  • 17-percent of employees telecommute at least part-time
  • 2.3-percent of employees are “true telecommuters”

Colburn then stressed the importance of job site analyses and surprise inspections of home offices. He provided the example of a Texas company learning that a home-based insurance adjustor in Texas operated out of a small garage that lacked air conditioning or heat.

Levy recommended that employers that could not conduct home inspections “establish written ground rules as to what is the employment premises and what is not for the purposes of Workers’ Comp.”

The panel moved onto the timely topic of the compensability of slip-and-falls on icy driveways and similar incidents. One determining factor was whether the injured employee could sufficiently show that the activity in which he or she was engaged at the time adequately furthered the business interests of his or her employer to make the harm compensable.

Pierce provided the example of a man who was awarded workers’ compensation benefits (benefits) for an incident in which he severely injured himself while salting his icy driveway. The court that affirmed the award of those benefits reasoned that, although the man would have salted his driveway even if he did not work from home, he proved that he completed that task at the chosen time because he was expecting UPS to deliver business materials. In other words, the man adequately showed that salting the driveway furthered his employer’s business interests to justify awarding benefits.

Another case that the panel thoroughly discussed touched on the more basic employment principle that telecommuting has evolved from an option that traditionally was viewed as primarily benefitting the employee to one that benefitted the employer as well by reducing overhead expenses. The outcome in that dispute was that a home-based salesperson was awarded benefits for harm that she sustained from stepping on her dog while the employee was engaged in work-related activity at her home.

“Coming and Going” Aspects of Telecommuting

Telecommuting additionally can muddy the waters regarding the workers’ compensation “coming and going” rule. That principle generally barred awarding benefits for harm that an employee sustained while engaged in traveling between his or her home and place of employment. A general exception allowed awarding benefits in some cases in which the injured employee showed that the travel adequately related to the underlying employment to justify an award.

The case that Pierce selected to illustrate the “coming and going” rule as it pertained to telecommuters involved a high school tennis coach who broke his leg falling down stairs while on his way to his home office to telephone newspapers the results of that day’s matches. The determining factor that resulted in awarding the coach the benefits was that the fall was attributed to his tennis bag, which qualified as “an instrumentality of employment,” hitting a shelf in the stairway.

Alternative Workplaces

Primarily because an employee does not control the environment at a Starbucks and comparable alternative workplaces, issues related to harm that occurred at those “mobile offices” do not involve many issues related to a home office. The primary issue related to harm that occurred at an alternative workplace was whether the employee was engaged in work-related activity when a harmful incident occurred.

Levy shared the case of a driver who crashed into a Starbucks killing a university researcher who was using his laptop for work when that incident occurred. Awarding the researcher’s widow benefits reflected the proof that the driver was engaged in work-related activity when the car struck the store.

Business Travel Compensability Issues

Of all the mobile workforce-related topics that the panel discussed, business travel was perhaps the most straightforward. This was because that was arguably the most liberal area regarding determining that harm was compensable. The many cases in which electing to dine even at a restaurant that was not the closest to the temporary workplace or that other personal deviations did not adequately break the connection with work to justify denying compensability reflected recognition that employees who were required to leave their homes and families to further their employers’ business interests deserved significant leeway under the “continuous coverage principle.”

Pierce stated regarding that principle that “when the employee is sent by his employer out of town on business he is away from his home. He is on unfamiliar territory. His employer is paying generally for his lodging and travel and meals. As a result, pretty much everything he or she does that might lead to an injury is generally going to be considered compensable.”

The panel also touched on the issue of employees developing fatal blood clots when forced to sit for long periods on lengthy flights. The general guideline was that such harm was compensable if the employee lacked a feasible means to stand and walk and if the employee sufficiently demonstrated that the incident arose out of the course and scope of his or her employment.

Home Remedy

The privilege of working from home or a Starbucks ultimately relies on that practice not unduly burdening an employer. Good practices for not ruining that for the rest of us include using the same degree of care at home during office hours that you would exercise at the office and not seeking workers’ compensation benefits for harm that did not arise out of the course and scope of your employment.

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