By Melissa Noble
Many employees have been quick to demand that their employer allow them to work from home to prevent the spread of COVID-19. The unfortunate news for employees, however, is there are no Federal or California laws requiring an employer to allow an employee to work from home. The right to work from home is a privilege given by the employer to the employee.
For employers considering whether to allow employees to work from home, you need to think of the liability aspect. What happens if an employee is injured while working from home? Is the employer responsible for the injury that occurred? How can an employee prove they were injured due to work-related responsibilities?
Employers want to put the safety of their employees first by allowing their employees to work at home, but they do not want to be held liable for things that may not have occurred had the employee been in the workplace.
To keep it simple, the short answer to this question is YES, an employee working from home can receive workers’ compensation benefits if they are injured in their home. However, specific facts surrounding the claimed injury are going to be determined on a case-by-case basis.
When analyzing a workers’ compensation claim made by an employee, one must first look and see if the employee can meet their burden of proof i.e., can they prove AOE/COE.
Under Labor Code section 3600(a)(2), an employee must show that the injury:
- “arose out of the employment” (AOE) generally meaning proximately caused by the employment; and
- the injury was “in the course of the employment” (COE) generally meaning time, place, etc. must relate to the employment.
There are many legal components to a workers’ compensation claim, but the most litigated issue in cases involving an employee working from home is did the injury “arise out of and in the course of employment.” Though it seems easy for an employee to claim they were injured in the comfort of their own home, the task can be quite challenging as the employee does have to establish the burden of proof.
In the case of Kidwell v. Workers’ Comp., the applicant was at her home practicing a jump that was required in order to pass a fitness test given by her employer. (Appeals Bd., 33 Cal. App. 4th 1130.) The applicant claimed she has working within the course and scope of her employment when injured while attempting to do the jump. The Court found petitioner’s belief that practicing the jump for respondent employer’s fitness test at home was job-related, was an objectively reasonable belief and thus, her injury was compensable under Labor Code Section 3600.
Had the applicant been practicing jump squats for her own personal gain, the Court would have most likely rejected her workers’ compensation claim. Again, the compensability of a claim is going to be based upon specific facts of the case. Thus, an employer should take extra precaution before giving their employees the right to work from home.
WHAT CAN AN EMPLOYER DO TO PROTECT THEMSELVES AGAINST A WORKERS’ COMPENSATION CLAIM FILED BY AN EMPLOYEE WHO WAS INJURED WORKING FROM HOME?
There are several steps an employer can take when making the decision to allow employees to work from home. Below are a few starting points an employer can do to make sure they have a secure plan to protect themselves:
- Only allow employees you trust to work from home. Although we all want to say each person we hire is an honest individual, the world is not a perfect place. Thus, only allow those employees whom you know will diligently work and ensure their safety at home.
- Establish a telecommuting plan and clearly define what is considered “work”. Define your expectations and policies governing the terms and conditions of working from home to avoid any discrepancies down the road. The more detailed the plan, the less likely the employee will prevail.
- Require the employee to have an established workspace environment in their home. Ensure the employee undergoes a safety check of all equipment within the workspace as well. Take photos of the workspace and follow up bi-annually to ensure the space meets all safety standards.
- If you have an “hourly” employee working from home, create an online portal that will monitor when the employee clocks in/out, takes a break, or ends work for the day. Working from home has many distractions so if you can have a record log to account for your employees working day, this will benefit you if you need to look back on it.
Ultimately, the more prepared and detailed you are in your policies and procedures to employees working from home, the better equipped you are in fighting any potential workers’ compensation claim.
Employers want to ensure the safety of everyone working for them. Employers considering allowing employees to work from home should work with their workers’ compensation carriers to minimize risks when employees are given permission to work from home. With many employees telecommuting in the year 2020, it does not hurt to take extra precautions to ensure the future of their business.
Taking these extra steps can make the world of difference when you are faced with a situation such as this. If you are an employer or third-party administrator, feel free to reach out to our office so we can answer any questions you have regarding a workers’ compensation claim where an employee was injured working from home.