The cost of living in California has resulted in many employees choosing to move to remote parts of the state, but retaining their local jobs.
Telecommuting is also a growing trend across the country. According to a 2017 study, 20-25% of the U.S. workforce telecommutes at least part-time. Since 2005, there has been a 115% increase in regular remote work arrangements among employed professionals.
Working from home presents challenges for workers’ compensation insurers. When the home becomes a workplace, what injuries are covered on an industrial basis? First, let’s examine the commute. Generally, injuries sustained commuting to and from the workplace are not compensable. But what happens when the home becomes a workplace?
An early case involving the home as a second workplace dealt with employees who continued working at home after completing their workday. In Bramall v. WCAB (1978), the Board held that the home could become a second workplace where the employee could not complete her work at the workplace, coupled with the employer’s tacit approval and knowledge of her working at home. In that case, a motor vehicle accident from the office to her home was found compensable.
The Supreme Court weighed in on this subject in the mid-1980s, holding in Santa Rosa Junior College v. WCAB that there must be some requirement from the employer that work was expected or required to be performed at home. There, the employee elected to work at home because it was more convenient for his on-campus activities as a teacher. The court held that because there was no requirement by the employer that work be done at home, the home was not a second workplace.
The tech boom of the 1990s pushed the issue of telecommuting and off-site workplaces to the forefront of litigation. In one of the more unusual cases, the WCAB addressed an injury sustained at a Starbucks while an employee was working remotely in CIGA v. WCAB (Schneider) (2002). There, the employee was a physics professor at Stanford University. In addition to teaching classes, he worked on his laptop due to office disruptions. The university allowed him to travel to New Jersey due to child care difficulties. While in New Jersey, working on his laptop at a Starbucks, he was struck and killed by a vehicle that crashed into the café.
The WCAB upheld the finding of death AOE/COE. First, they noted that the university gave decedent express discretion to choose when and where he worked. His laptop allowed him to “work anytime and anywhere.” Moreover, that he was in New Jersey “was incidental to his employment” because the employer expressly allowed him to travel while working. Finally, the university was aware that he and other faculty members did research and writing off-campus, and they approved of the practice.
The Board concluded that but for his need to generate research and writing, “he would not have been working on his laptop computer away from his family when his death occurred. It is undisputed that he was engaged in Stanford University Physics Department-related work when he was struck by the errant motor vehicle.”
A more recent 2017 case illustrates the risk associated with employees working at home. In Santa Clara Valley Transportation Authority v. WCAB (Tidwell) (2017), the applicant (a management analyst) was working from home because her non-industrial disability precluded her from using the employer’s bathrooms. During the workday, she fell while transferring herself from her toilet to her wheelchair and claimed a right thigh injury.
The WCAB upheld a finding of an industrial injury. The employer had given permission for her to work at home and she had worked at home for 10 months before the injury. Also, the personal comfort doctrine allowed the bathroom to be a location of an injury because applicant was “attending to her most basic personal and incidental need during the workday when she was injured and that, consequently, her injury in the bathroom while working at home was compensable.”
Conclusions and Recommendations
These cases illustrate a growing trend that injuries sustained at home, where the workplace becomes a second jobsite, may be compensable. When presented with these claims, the insurer should carefully examine the facts. Was working at home expressly authorized by the employer or was it an independent decision of the employee? Personnel documents, including employment agreements, work restrictions, and human resources documents (including emails between applicant and employer) may shed light on the understanding regarding working at home.
Employers should also examine the circumstances of the injury, including the time and location where the injury occurred. Injuries sustained in the evening would appear less likely to be related to employment activities. If the employee alleges that they were working on a laptop when injured, a forensic examination of the laptop (particularly if it is an employer-provided laptop) is important to confirm whether work was being done.
An insurer should also carefully investigate the applicant’s job duties and requirements, including whether the job required working at home or, alternatively, whether the employee was merely choosing to work at home for personal convenience. For example, an overworked insurance defense attorney may claim that they were injured when a stack of files fell on them while working at home the night before a hearing. However, a close examination may reveal that there was no express requirement to work at home, that there was enough time to complete work at the office, and that the employer had no knowledge of whether attorneys took work home.
Although the home can be claimed as a second jobsite, unless work could not be completed at the jobsite, the home should remain a work-free environment.
Michael P. Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Mr. Burns practiced civil litigation and employment law. He currently serves as an arbitrator for the Santa Clara County Bar Association’s Fee Dispute Resolution Program. Since joining B&B, his primary areas of practice include workers’ compensation and subrogation. Mr. Burns can be reached at mburns@bradfordbarthel.com or (408) 392-8202.
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