Workers’ Compensation Liability and the Remote Employee

by Abigail Gross

For many people, working from home is the “new normal.” The COVID pandemic has forced millions of employees to bump up their Internet speed, learn to use ZOOM, and transform an unused corner of the home into a functional office space. The goal was to remain productive yet distant. We did this because it was part of our social responsibility – and because the Governor told us that we had no other choice.

Most people hope that the short-term sacrifices are exactly that: short-term. (I, for one, look forward to the day that I no longer have to wear a facemask.) But many employers are embracing the benefits of a virtual workforce.  Mark Zuckerberg said as many as 50% of Facebook employees could be working remotely within the next five to 10 years. Twitter also announced that it would allow some of its workforce to continue working from home “forever,” if they choose.

While you may not be an employee of Facebook or Twitter, there are many local employers who are making the same forecast. Your dining room may end up being your office for longer than you expected.

So what happens if you trip and fall in your dining room (aka home office) and break your arm? What if you drop a heavy box and injure your foot? What if you fall down the stairs while heading to use the bathroom?

Can you have a WORK injury while working from HOME?

The short answer: absolutely.

Pennsylvania Courts have generally included work-from-home injuries as compensable claims. Indeed, one of the most basic tenets of The Pennsylvania Workers’ Compensation Act is that benefits are to be paid to an employee who is injured while “acting in furtherance of the employer’s interests.” The scope of this protection extends beyond the walls of an employer-owned workplace.  For decades, Pennsylvania Courts have awarded benefits regardless of whether the employee is on or off the employer’s premises. In these scenarios, the Courts focus on the “relatedness” of the activities.  In order to qualify for workers’ compensation, the millions of Pennsylvanians who are now working from home must prove that they were “acting in furtherance of the employer’s interests.”  

As you can imagine, every case will be fact-specific. Here are two examples:

COMPENSABLE – The employee was in her kitchen to get a drink of juice. She receives a call from her supervisor and falls down the stairs while returning to her basement computer work station.  See Verizon Pennsylvania, Inc. v.  WCAB (Alston), 900 A.2d 440 (Pa. Cmwlth. 2006).

NOT COMPENSABLE – Employee sustains injury when he trips and falls while outside the house – getting the mail, during a smoke break.  See Werner v. WCAB (Greenleaf Serv. Corp.), 28 A.3d 245 (Pa. Cmwlth. 2011).

In addition to “acting in furtherance of the employer’s interests,” the courts have found liability to exist when the employee made an innocent departure from work activities. Known as the “personal comfort” doctrine, an employee who sustains an injury during an inconsequential 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.

Workers’ compensation benefits also remain available even though employers cannot control what happens in an employee’s work environment. Unlike the corporate office, the odds are that no one is reviewing your workspace to make sure it is ergonomically compliant. In addition, employees working from home may not be adhering to typical office hours. Employees may decide to power through their workday with no breaks, causing fatigue and injuries associated with carpal tunnel, neck, and back pain from long periods of sitting at a computer.

Regardless of where or how the injury occurs, the rules regarding notice still apply. If you believe that you sustained an injury while doing your job, you must give notice to your employer.  Practically speaking, the sooner, the better. However, the law provides that notice must be given within 120 days.

So for all of you remote, virtual, telecommuting employees… be careful in that dining room!

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