With corporate offices physically closing and countless employees now working from home due to the COVID-19 outbreak, many New York employers are wondering how the more lenient workers’ compensation laws will be applied to claims if an employee is injured while working in his or her home rather than in the traditional workplace. Although recently expanded in response to COVID-19, work-from-home positions are not a unique concept and were recently addressed by the New York State Workers’ Compensation Board in the Mandatory Full Board Memorandum of Decision of Matter of Matrix Absence Management, WCB # G195 3353 (May 3, 2019). In short, the Board dialed back some of the more relaxed rules for compensability of injuries sustained by employees in work-from-home positions.
In considering the proper handling of a claim involving an employee working from home, the Full Board acknowledged that “legal standards developed to address whether an injury occurring in a traditional employer-controlled workspace is compensable cannot always be reasonably applied to injuries to employees working from home.” Ultimately, the Full Board articulated the following rule: “Employees who work from home, outside the direct physical control of their employers, are potentially able to alternate between work related and personal activities when they choose. For this reason, injuries sustained by employees working from home should only be found to be compensable when they occur during the employee's regular work hours and while the employee is ‘actually performing her employment duties.” The Full Board also articulated that “taking a short break, getting something to eat, exercising or using the bathroom” are examples of activities not considered typical employment duties. Besides exercising, these are the types of activities that the Board would usually consider a “momentary deviation” from employment if they took place in a normal employer-controlled workspace, and therefore, injuries sustained while performing same would be considered compensable. However, the Board made a clear distinction in this case that the same rule does not apply when the employee is working from home, in which case these activities will be considered purely personal activities that are outside the scope of employment, such that injuries sustained during same are noncompensable.
The specific facts in Matter of Matrix Absence Management are similar to the types of claims we would expect to arise from a remote employee. In that case, the claimant alleged that while moving and installing “ergonomically correct office furniture” in his home office, he sustained several physical injuries as well as some psychological complaints. At a hearing, the claimant testified that he lost his footing on the stairs while moving this furniture and felt a tweak or pop in his back. Interestingly, the employer only provided him with a computer, two monitors, and a keyboard. The employer did not purchase this furniture and did not agree to reimburse these items. Claimant additionally testified that he was on a lunch break at the time of the injury. Ultimately, the Board held: “Because claimant's injury occurred while he was moving furniture, rather than performing his work duties as a claims adjustor, and the employer did not pay for the furniture or direct claimant to obtain it, the record supports a finding that the activities that claimant was engaged in were not sufficiently work related to render his injuries compensable.”
Since this case was decided in May 2019, we have not seen any published Board Panel Decisions or cases out of the Appellate Division citing to the newly articulated rules on work-from-home compensability. As a Full Board Decision, the holdings are essentially binding on these issues unless distinguishable. Thus, the main considerations with regard to compensability will be whether the injury was sustained (1) during the employee's regular work hours and (2) while the employee was actually performing his/her employment duties. The language in the Full Board Decision leaves open the possibility that a claim with similar facts could be found compensable where the employer purchased the home office furniture or directed the claimant to obtain it. In such a case, assembly of the furniture could then more reasonably be considered the claimant’s performance of employment duties.
Since employers cannot be certain that the employee was injured in the scope of his/her employment at home, each claim should still be addressed on a case-by-case basis. We recommend implementing well documented procedures for working from home, including clearly defined work hours, with possible clocking in and out for breaks, clearly defined employment duties while working from home, and documentation of what items (e.g., computers, furniture, etc.) will be covered by the employer. We expect most of the more questionable workers’ compensation claims involving remote workers to arise out of the physical set up of a last minute home office. Consideration should therefore be given to employer provided assembly/setup of any home office items supplied or directed by the employer.
Moreover, any unwitnessed accidents that occur in the course of employment are presumed to have arisen out of that employment under Workers’ Compensation Law § 21(1), and it is on the carrier/employer to rebut this presumption. This presumption will be significantly more difficult to rebut with an employee working from home. Therefore, a lot of emphasis will be placed on the claimant’s initial account of the accident. Should any injuries arise while an employee is working from home, we strongly recommend that the employee promptly be asked to provide a detailed written history of the incident, including the time, place, and circumstances surrounding the incident, so the events are well documented to allow for proper review by the Workers’ Compensation Board for compensability. This is especially important in light of the delay in seeking initial treatment for injuries expected during this crisis.