WORKERS’ COMPENSATION LIABILITY IN MASSACHUSETTS FOR INJURIES THAT OCCUR WHILE WORKING FROM HOME
Workers’ Compensation liability exists regardless of the location of the injury provided it “arises out of and in the course of employment.”
The same rules for compensability exist for at home employees as they do for employees in an office. Proving an injury occurred while in the course of employment while working from home is often the determining factor regarding liability. There are some important issues to consider:
1. Jurisdiction: An employee may live and work from home in a different state than the employer’s primary place of employment. If so, jurisdiction may exist in both states and if the home employment is more than just a few days or very casual, an insurance policy should have a rider to cover those states where an injury at home could occur as jurisdiction in the state of injury would exist.
2. Employment: Workers’ Compensation coverage does not cover freelance or true independent contractors. If a dispute exists, the degree of control the employer exerts is a primary issue.
3. Personal Injury: A personal injury either physical or emotional must occur but certain limitations exist. Emotional injuries occurring at home are not compensable unless they arise out of an event or series of events and it must be the predominant cause of the disability. Bona fide personnel actions that cause an emotional disability are not compensable (for example: requiring an employee to return fulltime to the office causing an emotional disability).
Also, exposure to infectious diseases such as Covid are not compensable unless the risk of exposure is inherent in the employment (possibly a nurse taking care of Covid patients in their home).
4. Causation: The injury at home must “arise out of the employment” or have a work connection. Causation must be due to a work event traumatic, cumulative or some occupational exposure.
For example, there was recently an article in the Boston Globe about employees experiencing more back problems as a result of poor working conditions at home (dining room tables, couches, etc.). Injuries as a result could be everyday wear and tear and not related. However, there could also be medical issues that develop from prolonged sitting in an inadequate chair (10-12 hours), working at a computer for prolonged periods or moving to get a file which would be considered compensable.
5. In the Course Of: The employee must be “in the course of their employment” when the injury occurs and not out running a personal errand or doing laundry, etc. Lunch breaks and personal comfort breaks in the home are in the course of employment.
*In the course of employment exists if the employee is injured performing some activity that benefits the employer and does not involve misconduct (drug abuse), a deviation from the job (dog walking) or a recreational activity (treadmill).
6. Disability: Finally, there must be a wage loss as a result of a compensable disability. Working from home may reduce exposure in this instance because of the minimal physical requirements, no commute and accommodations that are more available.
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Some actual case examples:
- Put me in coach……In Massachusetts, a high school tennis coach allowed to work from a home office and call-in scores was seriously injured falling down a flight of stairs while going downstairs to place the call. Held to be compensable.
- In Alabama, a bookkeeper was injured when her husband’s gun went off “by accident” when she went to move it off her work papers. Denied at hearing and reversed on appeal and held compensable.
- In Tennessee, a woman was assaulted in her home while making lunch during a work break. In that case, it was held not compensable. She was in the course of her employment since she was on a work lunch break in her home, but they held it did not arise out of the employment because she had a “personal” relationship with the person who assaulted her.
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Working from home does not increase exposure and actually may help reduce exposure by an earlier return to work. There are still some risks (stairs) and difficulty in investigation (no witnesses), but the employer can take steps to ensure their employees safety at home:
- If a work from home is permanent (even if it’s a hybrid type), take reasonable steps to make sure their home area meets workplace health and safety requirements and provide items, if necessary, (office chair) for them.
- An employer should have a work from home policy which provides clear instructions what to do when an industrial accident occurs, to report it promptly and identify when and where it occurred.
- If possible, have employees designate and identify the location of their work at home area.
Working from home does not generally increase the workers’ compensation exposure of an employer when some precautions are taken. More significant liability issues might exist from Cybersecurity if an unsecured or public Wi-Fi source is used or an unsecured laptop.
The percentage of work from home employees has increased from 24% in 2018 to a high of 66% during the pandemic. This will go down, but it is estimated that over 40% of all employees will be working from home as part of the new normal.
Remember fault (unless its serious and willful misconduct by an employee) plays no role. In the tennis coach case, he was rushing down the stairs to call in the scores. Being exposed to “a risk of his home” is also not a determining factor of the injury occurring in the course of employment. Also, regular subrogation rules apply if a third party causes the accident.
Finally, this is not a new phenomenon as a result of the pandemic. In Soares Case (1930) a plumber was killed cleaning a blowtorch at home that he was planning to use the next day while at work. The Supreme Judicial Court held it to be a work related and compensable injury.
NH Department of Labor:
Electronic Filing of a First Report of Injury
Please be advised that any employer may submit a First Report of Injury via email directly to:
[email protected] or [email protected]
Please submit First Reports of Injury to both email addresses to assure swift processing of your submission.
A First Report of Injury should be filed on all reported or suspected work place incidents, even if it involves a medical-only incident. Failure to file a First Report of Injury may result in a fine issued by the DOL.
A Memo of Denial may be appended to the First Report Submission.
Please see RSA 281-A:53 regarding this requirement.