As a result of recent events, such as the Governor of the State of California’s business shutdown order with respect to the Coronavirus Disease, many employers are having their employees work remotely from their homes.
Workers’ Compensation Law has long wrestled with the issue of employees working remotely and specifically employees working at home.
This article will discuss the nature of employees “working at home,” the concept of “home as a second worksite,” and discuss the issue of “personal convenience” versus “actual work.”
The Nature and Extent of Remote Working
As a result of technology, the internet, the advent of paperless files, and cloud-based applications, the necessity to have a physical office has greatly diminished. In the legal profession, there are many attorneys who practice in workers’ compensation who have begun to exclusively work remotely. They no longer maintain an office at their firm and only come into the offices for special reasons. Further, there are many other fields that have moved work positions to be remote in nature. Further, in the work force, there are many emerging job positions that have been created from their inception as ones in which exclusively working remotely is intended.
During the State of California’s lockdown, I have continued to conduct work. This has included making numerous phone calls to law firms, insurance companies and doctor’s offices. During this time, I have discovered that many of these individuals were still working. Out of curiosity, I asked them how they were able to working during the shutdown. Many of them advised me that they had been working at home remotely for years. This included adjusters from insurance companies.
The Nature of Home as a Place of Employment: Primary versus Secondary Worksites
The California Supreme Court in Santa Rosa Junior College v. Workers’ Comp. Appeals Bd. (1985) 40 Cal. 3d 345, addressed the problems and nature of working at home with respect to Workers’ Compensation Law.
It noted “ [f]urthermore, we find little to commend the white-collar exception which we refused to establish in Wilson. It would, a fortiori, extend workers’ compensation benefits to workers injured in the homes themselves, as well as en route to and from their regular work places. Ironically, a white collar exception would probably not diminish the controversy surrounding the going and coming rule; it would merely shift it to a new and equally arbitrary “line” defining the “course of employment.” 16 Would the fact that an employee regularly took work-related materials home suffice to create a second jobsite, or would the employee have to show that he actually worked at home? How would we treat employees who work at home on some evenings but not on others, depending on their personal inclinations? And, of course, new problems of the “frolics and detours” variety would plague the new exception.
On the other hand, insofar as the board’s determination that the employee was “implicitly required” to maintain his home as a second jobsite was intended as a finding of fact, it is simply not supported by substantial evidence in the record. Although the evidence shows that most faculty members took work home and that the employer was well aware of this practice, there is nothing in the record which indicates that faculty members were required — implicitly or otherwise – to work at home rather than on campus. Rather, the evidence reveals that professors worked at home by choice, not because of the dictates of their employer. On this record, there is no room for a factual finding that working at home was a condition of Smyth’s employment.” [emphasis added]
In sum, the nature of whether one’s “working at home” is to be considered as work “arising out of and in the course and scope of employment” for the purposes of qualifying an individual for workers’ compensation benefits is a matter for the “finder of fact.” The “finder of fact” is the legal term of a Judge. In workers’ compensation, it would be the Workers’ Compensation Judge who would be the “fact finder” and make the decision.
The Implications of “Working at Home” Being a Matter to the “Finder of Fact.”
There are implications when the Court places the decision on finding industrial injury to the “finder of fact.” When a claim is filed, the insurance company has an obligation to investigate the claim. They will reach out via interview or deposition of the Applicant to get the facts of the injury. They, however, are not obligated to make an advocacy determination on the Injured Worker’s part as to why the matter should be considered as work-related. Therefore, many carriers will simply issue a denial and give the reason that the “injury did not occur at the workplace” as the basis for the denial.
If there is a denial, the matter will need to be tried at the Workers’ Compensation Appeals Board before a Workers’ Compensation Judge to make a “finding” that it was an industrial injury.
In sum, in these circumstances, a claim of this matter may take time. The necessity of the trial creates delay with respect to the Injured Worker getting benefits and treatment. There will need to be multiple court dates and time for a Judge to make a written decision.
Second Worksite: Personal Convenience versus Second Business Situs
For workers who are provided a work location by their employer’s place of business and they also work at home. Caselaw has produced various decisions providing a factual analysis as to whether the injury is industrial.
The Supreme Court in Wilson vs. WCAB (1976) 41 C.C.C. 76, noted that “work done at home may exempt an injury occurring during a regular commute from the going and coming rule if circumstances of the employment — and not mere dictates of convenience to the employee — make the house a second jobsite. If the home becomes a second business situs, the familiar rule applies that injury sustained while traveling between jobsites is compensable. (Western States etc. Co. v. Bayside L. Co. (1920) 182 Cal. 140 [187 P. 735]; State Ins. Fund v. Industrial Comm. (1964) 15 Utah 2d 363 [393 P.2d 397]; 1 Larson, Workmen’s Compensation Law, § 15.14; cf. Pacific Indem. Co. v. Industrial Acc. Com. (1946) 28 Cal.2d 329 [170 P.2d 18]; Cal. Cas. Ind. Exch. v. Ind. Acc. Com. (1943) 21 Cal.2d 751 [135 P.2d 158].) However, if work is performed at home for the employee’s convenience, the commute does not constitute a business trip, since serving the employee’s own convenience in selecting an off-premise place to work is a personal and not a business purpose. (1 Larson, Workmen’s Compensation Law, supra, § 18.33.)
In sum, whether one’s work at home for the employee’s personal convenience or not, comes into play on a determination of work-relatedness with respect to injuries sustained at an employee’s home.
The Wilson case dealt specifically dealt with an employee getting injured in a car accident while commuting from her home to work. A second work site could give rise to workers’ compensation liability when traveling from one work-site to another. If there is a home worksite, then an injury sustained while commuting to and from one’s one home could give rise to a valid workers’ compensation claim.
Caselaw: Injury Found Industrial When Employee Was Working at Home as Part of a Disability Accommodation
There was an interesting case in which a Worker, who had been allowed to work at home as a result of a disability accommodation for a non-industrial medical condition, suffered an injury at home and claimed it as being work-related.
While she was working at home, she suffered an injury while using her own restroom. She was transferring from the toilet to her wheelchair when she sustained injury.
In Santa Clara Valley Transportation vs. WCAB (2017) 82 C.C.C 1514 (writ denied), it was noted that the “Applicant’s permission to work at home was an accommodation and Applicant’s testimony that she worked exclusively from her home for 10 to 12 months prior to her injury, for up to 70 hours per week. Furthermore, the WCJ observed that any preference expressed by Applicant for working at home was for health and safety reasons and was medically supported by Dr. So.”
In sum, this was found to be a work-related event. Again, this was a factually-based determination. There were significant facts that supported the findings. The fact that she exclusively worked from home, the fact that her employer agreed to allow her to work from home, and the length of time she worked from home all were excellent evidentiary facts to support the finding.
What If I Need Advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.