In response to the world-wide coronavirus epidemic, one of the most remarkable societal changes taking place in America today is the ubiquitous transition from working in an office to working from home. The deadly coronavirus is forcing this change, but many think that even when this crisis passes, American businesses will start to reevaluate the advantages of telecommuting given the incredible technology we all have at our fingertips and the potential cost savings in office space. As tens of millions of new home-based employees carry on their daily work tasks, many clients have begun to ask about the ramifications for workers’ compensation. The questions this practitioner is receiving almost daily are whether home workers are covered under workers’ compensation and if so, under what circumstances?
The starting point on this discussion is N.J.S.A. 34:15-36, which provides that employment commences when one arrives at the employer’s place of employment. However, the statute continues that when an employee is required by the employer to be away from the employer’s place of employment, that employee is in the course of employment when engaged in the direct performance of duties assigned or directed by the employer.
In one reported case involving a salesman, the court recognized that the home can be considered the petitioner’s primary place of employment. Wilkins v. Prudential Insurance and Financial Services, 338 N.J. Super. 587 (App. Div. 2001).
Surprisingly, there are not many reported cases dealing with home injuries, although one may safely surmise that this may be about to change. In Kossack v. Town of Bloomfield, 63 N.J. Super. 322 (Law Div. 1960) the court ruled for a police officer who injured himself cleaning his service revolver at home. The court found that the officer had a duty to keep his revolver clean, noting that the municipality placed no limitations on time or place in regard to this duty.
In another case involving a police officer, the petitioner was working the 7:00 p.m. to 7:00 a.m. shift and got permission from her Sergeant to drive home for dinner while on duty so long as she remained in radio and telephone contact. The officer finished her meal, headed out the door of her home, and slipped and fell on black ice on her property. The court found for petitioner on the grounds that the accident occurred in the course of her employment because she was authorized to take her meal at home. DeCoursey v. Tp. of Randolph Police Dept., No. A-0915-06 (App. Div. Aug. 14, 2007), certif. denied, 193 N.J. 222 (2007).
Most home injuries involve traumatic events like a slip and fall, but the New Jersey Supreme Court considered an interesting occupational disease claim several years ago, focusing on an employee who worked extensively on her computer at home. In Renner v. AT&T, 218 N.J. 435 (2014), Mrs. Renner was authorized to work from home three days per week. She was working on a deadline project and stayed up and worked all night. At 7:50 a.m. Mrs. Renner took her son outside to catch the school bus and grabbed her leg in pain while walking out of the house. At 9:00 a.m. she sent an email to a co-worker stating that she did not feel well but would complete the project. At 11:34 a.m. she called the Edison Township EMS stating that she could not breathe. She was pronounced dead on arrival at the hospital from a pulmonary embolism.
The expert retained by Mrs. Renner’s dependent husband testified that sitting at a desk for many hours contributed to the decedent’s deep vein thrombosis and death. The Supreme Court accepted the testimony of respondent’s expert that the death was not caused by work activities and was not a compensable occupational disease. The Court accepted the notion that petitioner could be covered for workers’ compensation purposes while working at home, but the court concluded that in this case there was no causation between prolonged sitting and her fatal pulmonary embolism.
One can safely state that under New Jersey law, injuries that occur in the course of working at home are on equal footing with injuries that occur in the course of working in the traditional office. Yet there may sometimes be surprising differences:
* Consider two employees: Employee W is injured in a large office space leaving her immediate work station to converse with a friend on the opposite side of the office. She slips and falls near her friend’s work station, 30 yards away. Employee H is working in a study at home and walks upstairs during a break to speak with his son who is home sick. He slips and falls in the bedroom. Both employees suffer a broken arm. Would both cases be compensable?
Employee W would be covered because she is on the work premises during work hours when she falls. New Jersey has a strong premises rule. But Employee H is now outside the study where he works and is upstairs in his house. Would you consider the entire house to be the work premises? Is that the intention of any employer who authorizes telecommuting? Does the employer lack any formal document at all about what is considered the work premises?
* Suppose Employee W takes a break at 10:15 to get coffee at the on-premises office cafeteria and is jostled pouring the coffee, causing severe burns. The same thing happens to Employee H at home in his kitchen. Is the kitchen part of the work premises?
In the office scenario, Employee W’s burns will be found compensable under the mutual benefit doctrine because there are some activities that benefit both the employer and employee. Coffee breaks are one of them. Further, the employee cafeteria is on the premises. An off-premises slip and fall by Employee W at a Wawa during a break would not be compensable, however.
But what about Employee H? The court in Cooper v. Barnickel Enterprises, 411 N.J. Super. 343 (App. Div.), certif. denied, 201 N.J. 443 (2010) found that a master plumber who worked on the road was covered when he was injured on his five mile drive to get a cup of coffee while on break. The theory was that someone who works outside an office should have the same opportunity for coffee breaks or restroom breaks as one who is in the office. Does Employee H have a strong argument that he should be treated the same as someone in an office? Probably yes although there is no reported case on point.
You can immediately see that the absence of any documentation about home office expectations is problematic. So what actions can employers take to get some measure of control over home injuries? After all, there are not likely to be witnesses to home injuries other than family members, and there are no security cameras to verify the mechanism of injury or location of injury. This practitioner recommends that employers consider the following issues in connection with a written understanding for employees who are approved to telecommute.
* Does the employer intend to authorize the entire home as the work site? If not, it would be important to put in writing the specific locations that the employee will conduct assigned business, perhaps a home office or the kitchen table but not the rest of the house. That will avoid claims for slips and falls in the driveway while walking to get personal mail or falls in the basement while checking the heater.
* Are there specific hours that the employee is permitted to work or does the employer allow work at any time suitable to the employee?
* Will the employee be required to clock in online and clock out when finished for the day?
* Is the employer responsible to supply and repair equipment such as printers, computers, and fax machines? Will the employer provide ergonomic assistance to home employees if that is also offered to office employees who experience arm or wrist pain?
* Employers should make clear that all the normal reporting requirements must be followed when an injury occurs to a telecommuting employee arising out of the employment. Same day notice is recommended so that the employer can contact its third party administrator or carrier for investigation and, if appropriate, direction of care.
This practitioner is of the opinion that telecommuting is here to stay in much larger numbers. Financial considerations, traffic considerations, environmental considerations, and enhanced productivity related to elimination of commuting time all favor the rapid ascent of telecommuting. From a workers’ compensation standpoint, the number of home injuries is likely to be far less than those in traditional office locations particularly if the employer at a minimum designates a specific area where work is authorized.
--------------------------------
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
