In the era of COVID-19, many businesses were forced to transition their employees to be remote workers. Prior to COVID-19, many industries did employ individuals who worked remotely. However, following the declared pandemic in March of 2020, all but what the Government considered essential businesses were forced to conduct business outside of the traditional work environment.
Generally speaking, a worker’s injury is considered “work-related” if it arises out of and in the course of the individual’s employment. To arise “out of” the employment, the worker must have sustained an injury or condition which resulted from a hazard or risk of the employment. To arise “in the course of employment,” the injury must arise within the time and space created by the terms of the employment.
Once a large majority of businesses in the United States were forced to transition their workforce to home, the employer no longer had any control over a worker’s environment. Also, the traditional work hours of a given employee may no longer be as determined as they were prior to the realities of remote employment.
The short answer is that a worker can certainly file a claim for a work-related injury or condition even though they now work remotely. The burden continues to be on the worker to prove that the injury or condition arose out of and in the course of their employment. Needless to say, given the large shift in the United States to remote work or telecommuting as a result of COVID-19, there will likely be many alleged claims that an injury occurring at home is work-related. The employer will likely have no way to challenge the veracity of what allegedly occurred given that there will not be any co-workers present.
Moreover, many employer premises now have surveillance which can capture any incident which occurs. The Department of Labor will need to weigh whether the worker’s home environment or the risk created by the employment led to the injury.
The New Hampshire Supreme Court has never published a case involving a workers’ compensation fact pattern involving a remote worker. The Court did, however, find that a traveling employee who was walking to their vehicle following a lunch break while then sustaining an injury was in the course and scope of their employment when she slipped on an icy driveway at her mother’s home.1 The Court, without ruling, added in Whittemore that it was “not convinced that a lunch break necessarily constitutes a deviation from employment II See Id. at 437.
Employers may want to ensure that all mail which a remote employee receives is sent electronically. There have been cases throughout the country involving remote workers who fall or slip on their own driveway while getting their mail and arguing that the mailbox contained both work and non-work related letters. It is safe to assume that a plaintiff’s lawyer will argue that the risks of the home essentially become the risk of the employment. However, it is more likely that such a broad or expansive view of the “arising out of” requirement would be rejected for a narrower analysis requiring that the injury be related to the actual performance of the work rather than the general home environment.
In the end, all of these cases involving remote work or telecommuting employees will be addressed on a case-by-case basis. The employer can do small things to incrementally reduce exposure such as requiring electronic mail, that the worker log in and out of their computer, and maintain proper phone logs. The employer should also continue to remind the remote workers that any alleged work-related injury or condition needs to be immediately reported.
1 See Whittemore v. Sullivan County Homemakers Aide Service. 129 N.H. 432 (1987).