May 06, 2012 BY Def Admin
Work Injuries At Home: How Telecommuting Is Bringing The Scope Of Employment Into The Homes Of Employees
One of the prevailing trends in the American work force today is the ability to work from home, or “telecommute.” Although fifteen years ago this concept was nearly unheard of, due to recent advances in information technology, telecommuting is becoming more common in almost every area of business. It offers employees more flexibility, a comfortable working environment, and no commute, while the employer benefits by saving on the costs of overhead. Nevertheless, despite the positive aspects of telecommuting, it presents problems when an injury occurs at home. As this arrangement continues to evolve, issues are sure to develop that employers will have to deal with.
It is well understood that, for an injury to be compensable under the Georgia Workers’ Compensation Act, it must “arise out of and occur in the scope of” employment. This imposes two separate and distinct issues. An injury “arises out of” employment where there is a causal connection between the type of work being performed and the resulting injury. On the other hand, an injury occurs “in the scope of” employment where the injury is suffered during the period of employment and at a place where the employee might reasonably be performing his job duties. New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (1923). When an at-home injury meets both elements, it may be compensable under the Act.
This can be problematic for employers because reported injuries at home are often difficult to disprove. In 2004, the Georgia Court of Appeals addressed an at-home injury involving a 24 hour on-call nurse who fell in her own driveway while carrying work documents and a take-out pizza. Amedisys Home Health, Inc. v. Howard,269 Ga. App. 656 (2004). Although the facts in that case involved an on-call employee, the court ultimately linked the employee’s injury to her work because the employee testified that she was carrying work reports with her when she fell. It essentially came down to the employee’s word, which is likely to be the case in every telecommuting injury. It can be assumed that at-home employees will often deviate from their job duties to perform personal tasks around the house. Although case law holds that a deviation from the job for comfort reasons, such as going to the bathroom or getting a drink of water, is within the scope of employment, purely personal tasks like washing clothes, walking downstairs to let a pet out, or going outside to talk to a neighbor, are not. Edwards v. Liberty Mut. Ins. Co., 130 Ga. App. 23 (1973).
Georgia courts have not yet addressed this emerging issue in detail, beyond the scenario of “on-call” employees. However, other jurisdictions have analyzed the issue more closely and may offer some guidance as to how Georgia courts could rule in similar situations.
i. What constitutes “in the scope of employment” while working from home?
In Rogers v. Pacesetter Corp., the Missouri Court of Appeals held that, where an employee’s work location presents a benefit to the employer, and not merely a convenience to the employee, it can be deemed part of the employment. 972 S.W.2d 540 (1998). After the employee testified that he regularly worked from home and that his employer knew of the practice and considered it a necessary part of the employer’s business, his home was held to constitute “a second employment location.” The court explained that, because the employee could show a “clear business use” of his home, rather than just a place of occasional employment services, it constituted his place of employment for purposes of evaluating workers’ compensation claims.
When determining whether a home constitutes a place of employment, courts have looked to factors such as the extent and regularity of work performed there, the presence of work equipment kept at the home, and the circumstances that make working from home a benefit to the employer, rather than a mere convenience to the employee. Id. In Tiernan v. Potter, the New York Supreme Court held where an employee worked from home at the direction of her employer and the employer furnished office supplies and reimbursed the employee for business expenses, there was sufficient evidence to find the employee’s home was also his place of employment. 281 A.D. 787 (1953). Additionally, in County of Los Angeles v. Workers’ Comp. Appeals Bd., the California Court of Appeals affirmed compensation benefits where a college professor slipped on some papers while preparing a class syllabus at home, because the regularity of his work from home created a second workplace. 45 Cal. Comp. Cas. 253 (1980).
There is no doubt Georgia will follow the lead of Missouri and New York. The fact of the matter is that if the employer requires or encourages telecommuting, accidents while performing work in that capacity should be compensable. The trouble comes in the employer’s total lack of control over the “work premises,” since the house is maintained by the employee, and in the employer’s inability to disprove the facts of a claimed accident. As in the Howard case, the sole witness is the employee.
On the far end of the spectrum is the scenario in which the employer “requires” the employee to telecommute. In that situation, would OSHA apply? Would the employer be required to inspect the employee’s home office to ensure a safe working environment? Although we could take this to the point of near absurdity, in today’s working environment, the possibility may not be that far off.
ii. Accidents while traveling to and from home
It is also important to note that allowing employees to work from home could extend workers’ compensation coverage to injuries occurring during travel between offices at work and home. Generally, workers’ compensation does not cover an employee who is injured while going to or coming from work, unless the transportation is furnished by the employer. However, the law recognizes an exception where the travel benefits the employer's business in some way. Particularly, where an employee is traveling from one employment premises to another and sustains an injury between the two, the injury is almost invariably compensable. Therefore, by analogy, employees who work from home may be found within the scope of employment during travel between the employer’s office and their own home.
In Ray v. Great Western Stage & Equip Co., the Missouri Court of Appeals held where the employee's home was truly a second employment location in which frequent employment services were rendered, travel to and from his home and work was therefore a risk of employment. 413 S.W.2d 576 (1967). In a South Carolina case, this principle was extended to include travel from an employee’s office to a company-owned lodging residence where the employee lived because the employee’s job required him to perform services at both locations. Sola v. Sunny Slope Farms, 244 S.C. 6 (1964). In accordance with these findings, any time a home-based employee travels to the office to deliver a report or to pick up an assignment, he or she may be even further subjecting themselves to potential work-related injuries.
iii. What can employers do to reduce these risks?
Allowing employees to work from home has a number of advantages for both the employee and the employer. However, when determining whether to allow employees to work from home, keep the following tips in mind:
1) Know the employee and ask questions about the home work environment. Is the work space safe? Should regular hours be maintained? Is there a way to monitor work activities?
2) Require the use of approved office equipment. By mandating the use of proper safety equipment, including ergonomically correct furniture, as well as surge protectors and fire extinguishers, employers may reduce the risk of injury.
3) Require certification of the employee’s at-home work station. Although privacy laws limit the employer’s ability to send inspectors into an employee’s home, employers might consider having home-based employees complete and submit regular safety reports.
4) Provide employee training for preventing injuries at home. Offer specific safety training for home-based employees, and provide assistance for employees setting up offices at home to ensure equipment is properly installed.
5) Create a policy for prompt reporting in the event of an injury at home. This policy should include who to contact in the case of an injury, and employees should be provided with a panel of physicians.
6) Limit traveling between offices. To minimize the risks of traveling between offices, allow for the exchange of information electronically, through e-mail, fax, or video conference, when employees work from home.
7) Most importantly, offer telecommuting positions to trustworthy candidates. Given the lack of oversight, employers have got to be able to trust their employees. By limiting at-home workers to only those employees who have demonstrated honesty in the past, employers may reduce the potential for fraudulent claims.
Depending on their duties, another possible solution for this increased level of exposure would be to hire at-home employees as independent contractors. However, bear in mind this is not as easy as simply changing the employee’s job title. For a true independent contractor relationship, the employer must be willing to relinquish control over the time, manner, and method of the employee’s work.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley