Remote exposures alter complexion of comp

With more people working from home, workers compensation has become a 24-hour exposure for employers, some experts say.

Estimates show an increase in the number of employers allowing telecommuting or hybrid arrangements since the COVID-19 pandemic, and alleged work-from-home injuries are resulting in comp claims.

Details of contested claims show the difficulties employers face in determining their validity. At least one state has passed a law aimed at adding clarity to the issue.

“When a person works in an office, they’re going to the office at a set period of time. But when you’re working from home, you may get up at 10 o’clock and do work, or you may do it at one in the morning or two in the morning. There’s no real arbiter of stoppage of what you can and can’t do within a timeframe,” said Patrick Edwards, Chicago-based area senior vice president and workers compensation practice leader for Risk Placement Services Inc.

RPS, a unit of Arthur J. Gallagher & Co., last month released a report identifying work from home as one of the issues that will have an impact on workers comp in the future; that expanded exposure, less employer control of the environment, and mental health are concerns. Working from home will also affect the coming-and-going workers comp rule in most states and is likely to complicate investigations because of the lack of witnesses, according to the report.

Anticipating more people working from home was the reason behind a first-of-its kind law in Ohio that specifies what constitutes an injury occurring in one’s home. The law, which went into effect Sept. 23, provides parameters for what constitutes a work-related injury outside of the employer’s physical domain, an issue that has been raised in courtrooms across the country with varying results.

H.B. 447, crafted in response to the pandemic and passed earlier this year, states that unless conditions are met compensability is barred for “an injury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home and that is separate and distinct from the location of the employer.”

The law states that three factors must apply for an at-home injury to be compensable: that the injury or disability arose out of the worker’s employment; that it was caused by a special hazard of the employment activity; and that it was sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

Philip Fulton, a Columbus, Ohio-based attorney who represents injured workers under the Philip J. Fulton Law Office, helped draft the law on behalf of the Ohio Chamber of Commerce.

“The language only codifies what I had to prove previously for one of my clients who was injured while working from home,” he said. “I believe because of COVID and the new reality that many now work from home, the chamber wanted some assurance on the elements for a compensable injury if injured at home.”

In creating the bill, Ohio lawmakers looked at other states and cases in which work injuries occurred at home, finding that the laws and rulings varied — what was compensable in one state was found not compensable in another, according to Mr. Fulton. He said Ohio’s law makes compensable cases fact-specific: for example, a person tripping down the staircase of their home en route to feeding their dog, versus a person tripping while trying to retrieve something work-related.

Timothy Zix, a partner and chair of the workers compensation practice group at Taft Stettinius & Hollister LLP in Cincinnati, said the Ohio law is “good news” for employers. While there has not been much case law in Ohio stemming from employees injured while working from home, a scan of cases nationwide shows that incidents do occur, and the claims are often litigated.

Among the examples Mr. Zix cited was a woman in Tennessee working at home who was attacked by a neighbor and whose injury was found to be not compensable. By contrast, injuries suffered by a telecommuting man shot in his home in New York during a robbery were deemed compensable.

In another case, a man in Utah slipped and fell while shoveling snow in his driveway in an effort to retrieve a FedEx package; his injuries were found to be compensable.

And then there’s the worker who trips on a pet — which has happened in several states with varying results, according to attorneys.

“It’s just kind of all over the board,” Mr. Zix said. “Ohio is trying to give employers a little bit of help with the special hazard requirements” for an injury to be found in the course and scope of employment.

The law would not apply to repetitive stress injuries, such as carpal tunnel, according to Christopher Ward, an attorney with Calfee, Halter & Griswold LLP in Columbus.

“In Ohio, carpal tunnel syndrome is typically handled as an occupational disease instead of an injury,” he wrote in an email. “There can be traumatic (carpal tunnel syndrome), which could be classified as an injury and come under this new language/law which changed the definition of injury, but typically it is handled as an (occupational disease), which has its own test to establish (compensability).”

This article was first published in Business Insurance.

Leave a Reply