WORKING FROM HOME: Issues Surrounding Alleged Work Injuries at Home
Given the global Covid-19 pandemic, many employees are working remotely from home. The question now becomes, how does remote work impact Workers’ Compensation? More specifically, if a remote employee is injured at home, is that injury compensable? The short answer to this question is “it depends.” “Was the employee performing work activities at the time of the alleged injury,” is the most important inquiry on this issue. However, determining the answer to this and other questions presented by the “work at home” environment, is not as easy. This article discusses the potential exposure for Michigan employers regarding remote employees and identifies some of the “issues” that may be common in the future with more and more employees working remotely.
An injury is compensable if it arises out of and in the course of employment. An injury “arises out of” employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Murphy v Board of Education of Sch. Dist. of City of Flint, 314 Mich 226, 282; 314 Mich 226 (Mich 1946). In other words, the injury must be the result of an employment risk. An injury occurs “in the course of” employment if the injury is suffered while the employee is performing his/her employment or job. This general rule is no different when applied to the remote employee situation, however there are many “practical” differences between “at home” injuries and injuries alleged to have occurred on the employer’s premises.
To illustrate some of the various potential issues that could arise, let’s consider some different scenarios, examples and possibilities.
Scenario 1: Remote employee is electrocuted by his work provided laptop while telecommuting for work.
Applying the Michigan legal standard to Scenario 1, the remote employee’s injury arose out of and in the course of his employment. First, there is a causal connection between his working conditions (telecommuting) and the resulting injury (electrocution). Moreover, electrocution by an electronic devise is a risk incident to telecommuting. Thus, the remote employee’s injury “arose out of” his employment. Second, the remote employee’s injury occurred while he was performing his work on his laptop, which was a duty he was employed to perform. As such, the remote employee’s injury happened “in the course of” his employment. Accordingly, the remote employee’s injury is likely compensable.
While Scenario 1 presents a somewhat obvious compensable injury, the scenarios below focus on those less obvious and more debatable situations that might be applicable to remote work. These claims are highly fact sensitive and need to be investigated fully before a final “decision” on compensability is made. During the investigation period, the claims could be denied, “pending investigation”.
Scenario 2: Remote employee commutes to his office to pick up files and transport the files home. During the commute process, the remote employee is injured in a car accident.
Generally, employees that are going to or coming from work are not covered under the Workers’ Compensation Act. Burchett v Delton-Kellogg Sch, 378 Mich 231, 236; 144 NW2d 337 (Mich 1966). However, there are several exceptions to this general rule: “(1) the employee is on a special mission for the employer, (2) the employer derives a special benefit from the employee’s activity at the time of the injury, (3) the employer paid for or furnished employee transportation as part of the employment contract, (4) the travel comprised a dual purpose combining employment-related business needs with the personal activity of the employee . . . .” See Thomas v Staff Builders Health Care, 168 Mich App 127, 129; 424 NW2d 13 (1988). Injuries that occur under the above exceptions are compensable because there is a sufficient nexus between the employment and the injury, such that the injury was a circumstance of the employment. Stark v LE Meyers Co, 59 Mich App 439, 443; 228 NW2d 411 (1975).
Given the law as outlined above, the compensability of the remote employee’s injury will depend on whether an exception applies. Exceptions (1)(special mission) and (2)(special benefit) are arguably applicable to Scenario 2 if the employer required the remote employee to retrieve his files in order to work remotely from home.
However, if retrieval was unnecessary or not required by the employer, the injury could qualify as a compensable injury under exception (4)(dual purpose). Under exception (4), an injury is compensable if the travel comprised a dual purpose of combining employment-related business needs with the personal activity of the employee. See e.g, Burchett v Delton-Kellogg Sch, 378 Mich 231, 236; 144 NW2d 337 (Mich 1966).
A case from the Michigan Supreme Court explains why this injury is likely compensable. In Burchett, a teacher was injured in a car accident while traveling from school after retrieving papers to grade at home. Id. at 233. The Michigan Supreme Court found that dual purpose rule applied given that the special trip amounted to employment-related business need and contributed to her injuries. Id. at 235-236. Here, as in Burchett, the remote employee made the trip to carry out employment related business needs. As such, even though the trip may have also furthered his own interest in making his remote work more convenient, this alone does not bar recovery. Instead, because during the retrieval of the files, an auto accident occurred and the employee was injured, the injury is likely compensable under the dual purpose doctrine.
However, the presence of additional facts could create an arguable defense. Consider the following slightly different scenario:
Scenario 3: Remote employee is on his way to his office to pick up files and bring them home for remote work. However, just before reaching the office, the remote employee stops at a bar for a bite to eat. While at the bar, the remote employee gets into an argument with a patron. The patron punches and injures the remote employee
Unlike Scenario 2 which likely presents a compensable injury under the dual purpose doctrine, Scenario 3 is more debatable and is not likely to be compensable. Michigan courts have held that if the major purpose of the activity is social or recreational, under the totality of the circumstances, then the injury does not arise out of and in the course of employment. Eversman v Concrete Cutting & Breaking, 463 Mich 86, 95; 614 NW2d 862 (2000). Further, if an employee “deviates” from a work related activity or route to and from work, an injury during the “deviation” is not compensable. Under Scenario 3 the employer would argue that the major purpose of the remote employee’s act of going to the bar was not work related and was a “deviation” from his trip to the office to pick up files. Though the remote employee independently chose to take a trip to his office in order to make his remote work more convenient and such an activity itself may be work related, he then chose to deviate and undertake a non-work related activity. As such, his injury in the fight at the bar, is not likely compensable.
Scenario 4: Remote employee suffers a heart attack while working remotely.
Ordinary diseases of life are not compensable. MCL 418.401(c). However, conditions of the aging process, including cardiovascular conditions are compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Id.
An analysis of compensability of a heart attack suffered at home or at the employer’s premises is likely the same. The “cause” of the heart attack under either scenario is critical. Whether there are work-related facts causing, contributing to, or aggravating/accelerating the heart attack will be determinative. As such, we would recommend initially denying such a claim, and investigating to determine whether any evidence connects the heart attack to employment related activities. If not, then the heart attack is not likely compensable. Some key questions will be: (1) What was the employee doing at the time of the heart attack, i.e. is there temporal proximity of the cardiac episode to a work experience? (2) Did the employee have a pre-existing heart condition? (3) If there was a pre-existing heart condition, is there a work-related cause that reasonably aggravated the condition? If the remote employee is unable to prove that his heart attack is work-connected, then the injury is not likely compensable.
Scenario 5: A remote employee is eating lunch at home and working simultaneously. She then chokes on her lunch and suffers injury.
In this scenario, we would recommend denying the claim while investigating. Given that the compensability question will be highly fact dependent on the existence of a work-related cause, all the facts surrounding the injury will need to be investigated thoroughly. The employee must prove that her working simultaneously while eating actually caused her to choke and suffer injury. If she would not have choked but for some factor due to working, then the injury is not likely compensable.
Consider some alternative scenarios (again, varying the facts slightly may result in a different compensability outcome):
Scenario 6: A remote employee is eating lunch, while participating in a work zoom meeting. During the meeting, a co-worker says something that startles the employee causing her to choke on her food and suffer injury.
Scenario 7: A remote employee is eating lunch, while participating in a work zoom meeting. During the meeting, her five-year old son jumps on the employee’s lap, startling her, which causes her to choke on her food and suffer injury.
In Scenario 6, the employee likely can argue that the injury arose out of her employment given that the zoom work meeting caused her to choke. However, unlike Scenario 6, Scenario 7 presents a non-work-related cause. As such, the claim is likely not compensable because it did not “arise out of” employment. Facts matter. Investigation is the key to determining compensability.
Scenario 8: A remote employee drinks a few alcoholic beverages at home during the work day. He then decides to carry a box of work documents from his office, located upstairs, to his basement for storage. While transporting the documents, he falls down the stairs and is injured.
Scenario 8 again presents a debatable situation that will be highly fact determinative. The compensability of the injury will depend on whether the employee can prove a work-related cause for the fall down the stairs. For example, if the employee’s intoxication caused him to lose balance and fall (as opposed to the carrying of the boxes causing him to lose his balance), then the injury is likely not compensable as work injuries as a result of alcohol or drug use specifically, are not compensable. In contrast, consider the next Scenario containing facts that may suggest compensability.
Scenario 9: A remote employee drinks a few alcoholic beverages at home during the work day. He then decides to carry a box of work documents from his office, located upstairs, to his basement for storage. While transporting the documents, the bottom of the box breaks, causing the work-documents to spill on the stairs. As a result, the employee slips on the documents and falls down the stairs, causing injury.
Scenario 9 provides a work-related cause for the fall, making it more likely that the injury arose out of and in the course of employment. The fall is a result of a work related factor, as opposed to the drinking.
These Scenarios are aimed at illustrating some of the issues and factual patterns (or similar ones) that you might face and need to investigate when presented with an injury claim of a remote employee. If there is any “doubt” about compensability, any such claim should likely be denied pending your investigation, as remote employees may ultimately have a more difficult time proving a work-related injury. This is because there likely is less evidence (either for or against proving a work-related injury) available in a remote work situation, compared to situations where there are co-employees and other witnesses who might help document an injury. The employee has the “burden of proving a work-related injury” and it may be more difficult to do in a remote situation. Many remote employees are home alone during their injury, meaning that there is no one present to corroborate a sudden injury or accident. Moreover, if there is someone at home, the witness is likely a family member or someone with inherent bias favoring the employee’s claim. However, while the lack of evidence may present an advantage to the employer in some situations, the lack of evidence could also hinder formulating a defense. As such, these claims warrant a prompt and thorough investigation to decide on compensability and to formulate a meaningful defense if necessary.
Consider the following tips for investigating a remote employee’s claim:
- Initiate an investigation into the claim as soon as possible.
- Obtain a recorded statement from the employee and any witnesses present during the injury/accident.
- Obtain information and witnesses from the employer about work duties/requirements in the work at home situation.
- Obtain a copy of the employer’s remote work policy.
- Obtain copies of any medical proofs of injury and causation.
- The investigation should aim to answer the following questions:
- What was the employee doing at the time of the injury?
- Was the employee working?
- When did the injury occur? During work hours?
- What caused, contributed to or aggravated the injury?
- What is the injury and does it seem like a reasonable result of the facts presented by the individual?
- Does the employee have a related pre-existing condition?
- Did the employee seek immediate medical treatment for the injury? If so, what was the diagnosed injury? Did the medical provider take a detailed history of injury from the employee? What is the contact information for the medical provider if they might be a witness as to the history of injury?
- If the claim is for an occupational disease or the aging process, is there a work-related cause or aggravating factor that is enunciated by the employee?
- Is the employee required to work from home?
- Does the employer supply the work equipment?
- Does the employee have a set work schedule controlled by the employer? If so, what are the set work hours?
Working remotely is going to become more and more common in the future. Developing a “strategy” for investigating these types of claims is critical. Facts matter. In fact, facts are the primary driving force in determining ultimate compensability in these cases. As such, being able to “creatively” determine the facts and potential defenses to these types of claims will be essential. If not properly investigated, and if employees feel that they can get away with certain things at home that they otherwise could not get away with at work, these types of “remote” claims could mushroom, and create extensive potential exposure for workers’ compensation benefits for employers and insurers.
If you need the assistance or input of an attorney, as always, the workers’ compensation attorneys at Giarmarco, Mullins and Horton, P.C., are available to help and give you their impressions and suggestions. Feel free to contact us at anytime to discuss these and any issues in Michigan Workers’ Compensation law.