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Remote Work and Worker’s Compensation Coverages-0

Remote Work and Worker’s Compensation Coverages

Remote and teleworking employees are typically covered under worker’s compensation laws. An employee injury is compensable under workers’ compensation if it arises out of and in the course of employment, regardless of the location where the injury occurs. With more employees working remotely and teleworking, employers need to adopt certain policies to understand what is covered when working remotely.

As remote and teleworking employees settle into working from home as the new normal, their homes have become their workstations. While this reduces the risk of injuries at the office or “on the job” in the traditional sense, employees may also be covered under worker’s compensation for injuries that occur remotely.

Compensable Remote Injuries

Workers’ Compensation Law (“WCL”) provides that coverage for workers and liability of employers is based upon injuries that arise out of and in the course of employment. While injuries sustained outside the workplace are generally not compensable, injuries from remote work are compensable under a “home office exception.”

In 2019, the New York Worker’s Compensation Board issued a Memorandum of Decision in Matter of Matrix Absence Management, limiting the scope of compensability for injuries sustained by remote employees “in recognition of the distinctive nature of their work environment.”

Employers have no direct physical control of an employee’s remote workstation. Additionally, employees may potentially alternate between work related and personal activities whenever they choose. Thus, injuries sustained by employees working from home need to only be found to be compensable when they occur during the employee’s regular work hours and while the employee is “actually performing [their] employment duties.”

Injuries occurred when an employee is not actively performing work duties, such as taking a short break or getting food to eat, are “purely personal activities [that] are outside the scope of employment” and not compensable under worker’s compensation.

New Jersey and Connecticut’s worker’s compensation policies are similar and also cover all injuries that have arisen out of and in the course of employment, whether the injury occurred at the office or while working remotely.

Procedures for Employers

Employers are responsible for providing the same safe work environment for employees who

work from home, as well as employees who work on-site. Employers need to implement well-documented procedures for working from home, including but not limited to:

  • clearly defined work hours;
  • clocking in and out for breaks;
  • clearly defined employment duties;
  • employer provided assembly of home office items supplied or directed by employer;
  • guidelines for a remote workstation; and
  • training for remote safety measures (i.e. ergonomics).

Employers need to be aware that exempt employees may work longer at home, with fewer breaks, causing physical fatigue and injuries associated with carpal tunnel, neck and back pain, and forward head posture problems and rounding the shoulders to lean the head forward. The top accident causes of working from home include repetitive motion microtasks (resulting in stress or strain), slips, trips, and falls.

If an Injury Occurs

If an employee’s injury occurs during the employee’s regular work hours and while the employee is actually performing their duties, the employee will have the burden of proving the injury is work related.

Employer’s need to promptly notify their insurance carriers or claims adjusters. In New York,  employer’s insurers or claims administrators must report a work-place injury to the Worker’s Compensation Board on or before the 18th day after the workplace injury occurred or within 10 days after the employer learns of the incident, whichever period is greater. In New Jersey, insured employers must immediately report injuries to their insurance carrier who will file an initial report to the Division of Worker’s Compensation within three weeks. If the employer is self-insured or non-insured, they must file the report themselves within three weeks. In Connecticut, an employer must file an initial report with the Worker’s Compensation Committee Chairman’s Office within one week of receiving notice.

After the employer or employee files a worker’s compensation claim and notifies their insurer, an adjuster will investigate if the injury occurred “within the course of and arising out of” their employment. “Arising out of” asks what (what was the employee doing when the injury occurred) and “within the course of” asks when (when the injury happened). The adjuster will need to know the exact location where the injury occurred (sitting in a chair at home, driving, walking to the kitchen), emphasizing the importance of the employee’s initial account of the incident.

When an injury occurs at home, there are likely no eyewitnesses except for the injured employee. In New York, in the absence of substantial evidence of the contrary, the claim is presumed to have risen out of employment. To rebut the presumption, the employer must rely on the employee’s initial account of the incident. The employer should have the employee promptly document a detailed account of the incident, including the time, place, and circumstances surrounding the incident.

OSHA Standards

In an OSHA interpretation letter, the Director of Evaluations clarified that injuries that occur while an employees work from home are “work-related” and, thus, reportable if the injury occurs “while the employee is performing work for pay and compensation in the home, and the injury… is directly related to the performance of the work rather than to the general home environment or setting.”

The letter provides two examples of non-work related injuries that may occur when working remotely from home: If an employee is injured because they trip on their dog while rushing to answer a work phone call, the case is not considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.

These federal standards are more restrictive than state standards.

Conclusion

In conclusion, remote or teleworking employee’s injuries may be compensable if they were sustained during regular work hours and the employee was actually performing their duties. When these injuries occur, there are likely to be no witnesses except for the injured employee. Employers need to take preventative measures to mitigate the risk of remote injuries. To limit the scope of an employer’s liability for remote injuries, employers should develop and implement work from home procedures such as documenting time (noting lunch breaks) especially for non-exempt employees, providing a safe and suitable workspace, and clearly defining duties.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
212-658-9313
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Jules Z. Halpern

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