by Patrick C. Gorman –
Bob Dylan astutely observed “The Times They Are a-Changin,” and we have seen tremendous refashioning of the modern workplace since March 19, 2020.
Businesses have been forced to make difficult decisions, most notably the conversion of the workplace from sprawling office complexes to individual office spaces for each worker by-and-large in their suburban homes or semi-urban condominiums.
Without exhaustive discussion on the topic of the remote work shift in the United States, prior to the spring of 2020, 43 percent of American employees had at least some remote work opportunities (Gallup: State of the American Workplace). Additionally, some industry researchers attributing up to 44% of the remote work labor force growth developing in the five years preceding COVID-19.
Stanford University recently published an article finding that, post COVID-19, approximately 42 percent of the U.S. domestic labor force is now working from home full-time (also observing that approximately 33 percent of the U.S. domestic labor force is not working). Only 26 percent of the U.S. domestic labor force continues to work on the premises of their employer – primarily in service-oriented industries. America has transitioned, in extraordinarily rapid fashion, to a labor force that works from home, full-time.
Because this transition occurred in a vacuum and with such expediency, growing pains are a certainty. We are going to see an evolution of legal doctrine, and eventually legislation, pertaining to industrial injuries arising out of and in the course of employment, at the claimant’s residence.
Traditionally, when a claim for workers’ compensation benefits is filed, many facts can be verified through a comprehensive discussion with the employer or supervisor. Did anyone see the injured worker fall? Was the incident the injury is alleged to have been caused by investigated, and documented, on the day it occurred? Could the injury even have happened the way described? We also know that the injury had to occur while the claimant was at work, narrowing the hours of occurrence to the work shift.
We are now in a world of claims for workers’ compensation benefits that are unwitnessed, not investigated in the same manner as before and potentially occurring during hours outside of the regular business day.
What we do know is that generally; injuries sustained by an employee while engaged in activities at the direction of the employer, and/or for the employer’s benefit, are compensable (see Maher v. Workers Compensation Appeals Board (1983)).
Unfortunately every business is unique in purpose, product, production, and culture. There is no “one size fits all” solution when addressing claims for workers’ compensation benefits for injuries sustained at home. There are some businesses who have utilized a remote labor force for several years, but so many businesses are evolving to a work-from-home labor force in expedited fashion and without consideration of what will happen if and when an employee is injured while performing their job at home. Additionally, many businesses haven’t fully thought about what they will do if an employee is injured at home while engaged in activities unrelated to their job, but alleges injury is industrially-related.
While there is no universal answer there are some crucial factors that any claims specialist or human resources specialist, or business owner can consider.
First, despite the labor force transforming over the course of a few weeks, all affirmative defenses codified in the Labor Code, and all equitable defenses under California law, remain applicable to all employees. The more applicable affirmative defenses for a home based labor force would be:
- Voluntary intoxication
- Initial physical aggressor
As a matter of practice (and law) these affirmative defenses are the burden of the defendant to prove, and that becomes difficult without independent percipient witnesses. However, employers should consider having any injured worker tested for drugs or alcohol after an injury. Consider performing a social media check that can be properly authenticated by a third party if it needs to be used as evidence later, and always obtain a recorded statement from the claimant.
Second, and an even more foreseeable dilemma, how can you determine if the injury even happened AOE/COE? How do you know if, factually, the injury is work-related, and not a back strain arising out of the claimant cleaning out their attic?
There are several tools available, both preventative and responsive, to try and get the facts straight.
It is highly recommended that any business utilize a time in/time out system for their home-based labor force. Additionally, clearly defined work/duty hours and tasks (in writing), can be of great importance.
If an individual calls EMS at 10 p.m. for an injury that just happened, having these clearly defined work directives and parameters will prevent a later claim that the injury arose out of work participation. (Fishy claims tend to arise once the claimant gets the medical bill.) And again, the taking of a recorded statement and social media investigation searches to preliminarily verify the accuracy of the recorded statement, will pin the facts down to one version of events.
The variable fact patterns to be presented are unlimited. Will we see an evolution in a defense of claims under Cal. Lab. Code § 4551? Third-party negligence claims against homeowners policies for negligent spouses who leave dangerous conditions throughout the home? This topic is so vast underdeveloped, but most certainly these are all avenues that need to be explored when any home based worker files a claim for workers’ compensation benefits.
Finally, if you are faced with a difficult fact pattern or a claim for workers’ compensation benefits that just doesn’t add up, ALWAYS reach out to your most trusted Bradford and Barthel attorney; we would love to talk it through with you.
No usage of this article and/or website shall create give rise to an attorney-client relationship and/or related privileges. Communications are not necessarily secure or confidential; merely initiating contact with this article and/or website does not create an attorney–client relationship. The information in this website is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained herein should be construed as legal advice from Bradford & Barthel, LLP or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader should act or refrain from acting on the basis of any information included in, or accessible through, this article and/or website without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction..