Legal Insights

Workers' Compensation Injuries, Employees Working from Home, and the COVID-19 Shutdown

March 30, 2020
By: James M. Burkhardt and Joseph C. Koerwitz

With more employees being able to perform their job tasks remotely from their homes during the COVID-19 pandemic, employers and workers’ compensation insurance carriers will be facing questions of whether an injury an employee sustains while working remotely at home is compensable under the Pennsylvania Workers’ Compensation Act. Below please find guidance regarding this issue.

• With the influx of employees working from home during the forced government shut-down, employers and workers’ compensation insurance carriers should expect that employees will seek workers’ compensation benefits for injuries occurring while working at home.
• The Pennsylvania Workers’ Compensation Act provides that, when an injury occurs off the employer’s premises, the employee must actually be engaged in the furtherance of the employer’s business or affairs in order for the injury to be compensable.
• In a case of first impression concerning workers’ compensation coverage for employees working in at-home offices, the Commonwealth Court of Pennsylvania reasoned that home offices are considered “secondary work premises.”  Verizon Pennsylvania, Inc. v. WCAB (Alston), 900 A.2d 440 (Pa. Cmwlth 2006). As stationary employees on secondary work premises, the analysis of compensability is much the same as injuries that occur in the normal workplace; the focus of inquiry is whether the employee deviated from being actually engaged in furthering the employer’s business, such that they stepped out of the course and scope of employment.
• With so many opportunities for deviation while working at home, when considering whether an at-home injury is compensable, the following issues should be considered:

-Define the “secondary work premises:” Identify the designated space where he/she is performing work and any set hours for performing this work. Define whether the employee utilizes personal devices, such as personal cell phones and computers, for completion of the work.

-Gather as much evidence as possible on when, where and how the injury occurred. Employees should be asked about the layout of their home when discussing the location of the incident, if it occurred away from the “secondary work premises.”

-Determine what type of activity the employee was performing when the injury occurred, as well as before and after the injury occurred, in order to cross-reference with e-mail and phone records. Employees should be asked whether they use a wearable smart device, like an Apple watch, and whether it is linked to a personal phone or a work phone.

-Determine if there is evidence of deviation from the work activities at the time of the incident. Employees should be asked to provide specific information as to the time they last engaged in activities in the designated work space in connection with the time of the incident, and whether additional activities occurred in the interim.

-Determine whether others are present in the home. Employees should be asked about any interactions with others in the home, including children, to determine possible deviations from work activities.

-Determine whether there any witnesses to the incident.

• If there is no evidence that the employee deviated from his/her work duties for personal reasons, the injury may be compensable.
• The well-established personal comfort doctrine provides that an employee who sustains an injury during an inconsequential or innocent departure from work during regular working hours, such as going to the bathroom, is nonetheless considered to have sustained an injury in furtherance of the employer’s business. Breaks that allow employees to administer to their personal comfort that better enable them to perform their job are considered to be in furtherance of the employer's business.
• For example, Pennsylvania courts have held that a claimant had not abandoned her employment when she walked up stairs and away from her work station in order to retrieve a drink from her kitchen. The injury occurred during claimant’s normal working hours at her at-home work site, which was approved by employer. She was furthering her employer’s business at the time she was injured, despite the brief departure from her work station to attend to her personal comfort.
• However, Pennsylvania courts have found that a claimant was not furthering the business of her employer while working remotely from home when she sustained an injury after she had left her work duties to take a personal break to get a drink and go outside to converse with neighbors.

Employers and workers’ compensation insurance carriers should obtain as much information as possible from workers claiming to suffer injuries while working from home. Each situation must be evaluated on a case-by-case basis.

Post & Schell’s Workers’ Compensation attorneys will continue to provide guidance for employers and workers’ compensation insurance carriers as this unique situation progresses. If you have questions regarding a specific claim, please contact any of the following of Post & Schell’s Workers’ Compensation Attorneys:

• Patrick T. Cusick, Principal and Chair, Workers' Compensation Department, in our Lancaster Office at (717) 391-4433 or pcusick@postschell.com
• Patrick R. Byrne, Principal, in our Allentown Office at (610) 774-0326 or pbyrne@postschell.com
• Patrice A. Toland, Principal, in our Philadelphia Office at (215) 587-1093 or ptoland@postschell.com
• Stephen S. Bloomburg, Principal, in our Pittsburgh Office at (412) 577-2985 or sbloomburg@postschell.com