The Anticipated Rise in At-Home Work Injury Claims During the Coronavirus Pandemic
We remain in the midst of a worldwide pandemic. The federal government and all 50 states have declared states of emergency. In an effort to mitigate the rapid spread of the coronavirus, Governor Gretchen Whitmer issued a “Stay Home, Stay Safe” Executive Order on March 24, 2020 (EO 2020-21). That Order was rescinded and superseded by another expanded stay-at-home Order, issued on April 8, 2020. (See EO 2020-42). Earlier this morning, the governor issued her most recent Stay Home, Stay Safe Order, extending the stay-at-home decree until May 15, 2020. (See EO 2020-59).
This most recent Order requires, with few exceptions, that most non-essential employees continue to remain home at least up through May 15, 2020. Earlier this week, Governor Whitmer said that the stay-at-home Orders are serving their intended purpose, as the number of new coronavirus deaths has continued to decline. Over the past couple of weeks, the number of patients hospitalized with COVID-19 dropped nearly seven percent. During that same two week period, the number of people on ventilators has decreased by nearly 25 percent. Dr. Joneigh Khaldun, the state’s Chief Medical Officer, attributed this “flattening of the curve” to the governor’s March 24, 2020 and April 8, 2020 stay-at-home Orders. In a Washington Post live interview on April 21, 2020, Governor Whitmer signaled that “some form of an Order will continue on” beyond April 30, 2020. And, as noted, she did so earlier today. Many other states are following Michigan’s lead. Others, like Georgia, are not.
As a direct consequence of the stay-at-home decrees, an even larger than usual segment of the workforce is now performing some or all of its work from home. In light of the dramatic increase in numbers of employees working from home, we anticipate that you may see an increase in claims involving injuries occurring under unique circumstances in various parts of employees’ dwellings.
Employing remote workers comes with its own set of legal implications, issues, and potential liability. These cases are complicated as the result of less employer supervision over remote employees; less employer control over the risks of harm presented in the home; lack of witnesses or security video footage to document claimed injuries; and less employer control over safety precautions in employees’ new working environment.
Initially, three principal indicia generally inform the determination regarding compensability of specific at-home injuries:
- The quantity and regularity of the work performed at home.
- The continuing presence of work equipment at home.
- Whether special circumstances of the particular employment made it necessary, and not just personally convenient, for the employee to work at home.
Currently, many employees are working from home, not as a matter of choice or convenience, but, rather, at the direction of their employer, and pursuant to our governor’s stay-at-home Orders. Employees have been literally forced to move their work tools and equipment to their homes. They have established offices and workspaces in dining rooms, kitchens, dens, and basements. They have been instructed to access their computer files remotely through Citrix, and other remote access programs. Employees are required to conduct their business meetings, teaching sessions, diagnostic procedures, and other work vis-à-vis Zoom, Google Meet, and other similar web-based protocols. As a result, all or a portion of employees’ dwellings have become part of, or the exclusive, employment premises.
Potential at-home work-injury-related claims you may encounter might include the following types of scenarios – some of which are plucked from reported actual cases:
- An employee trips and falls over the family dog on the employee’s way to the printer to retrieve a work document.
- An employee slips and falls on the driveway on her way to the car to retrieve a briefcase containing work items.
- An employee is riding a Peloton exercise bike while engaging in a mandatory work conference call – and she falls off the bike and suffers an injury.
- An employee slips and falls in his master bathroom while taking a short break to relieve himself.
- An employee spills hot coffee on his hand and suffers debilitating burns while getting a cup of coffee during a work break in his kitchen.
While the location of these employees’ primary worksites may have changed from the brick and mortar office to their basements, their dens, or their kitchen tables, the general analysis for a compensability determination should remain relatively the same as for any other workplace injury. The employee bears the burden of proving that the alleged injury both arose out of and in the course of the employment relationship. Clearly this test for work connection is binary. Both elements must be satisfied.
As a starting point, an injury that occurs while an employee is actually engaged in work for the employer, even when the work is casual or unimportant, is generally considered to be “in the course of” that employee’s employment relationship.
Similarly, where the employee is engaged in activities “incidental” to the employment, she is in the course of the employment. These incidental activities include breaks, activities for personal comfort – such as eating lunch, fetching coffee, using the bathroom -- and even minor geographic detours or minor deviations from work activity. See VanVorst v Maxitrol Company, 2007 ACO 130. However, many courts have refused to recognize as part of the employment not only personal comfort activities that are prohibited, but also those that are so remote from customary or reasonable practice, that they cannot be said to be “incidents of employment.” In other words, the concept of “incidental to employment” contains an element of the usual and reasonable, both as to the needs to be satisfied and as to the means the worker uses to satisfy them. If either is extraordinary, the action is no longer “incidental.” Your subjective judgment will come into play at this point in your assessment of the compensability of the claim.
An issue that will often arise in this realm concerns whether an injury is compensable when it occurred when an employee has mixed personal business with work time. Generally speaking, employers are responsible for injuries that occurred during such a detour, such as when an employee momentarily departs from his or her job duties and the detour is considered very minor. However, employers are not responsible for those injuries that occur during a detour that is considered major. Again, your personal judgment regarding the magnitude of the detour will be your guide.
Otherwise, in Michigan, Section 301(3) of the Workers’ Disability Compensation Act provides some additional guidance. That section states that injuries that occur “in the pursuit of an activity the major purpose of which is social or recreational is not covered….” Again, your judgment must be your guide when determining whether an activity is being pursued primarily for social or recreational purposes.
The next step requires a determination regarding whether the injury also “arose out of” the employment relationship. Generally speaking, so long as the employment subjects the employee to the actual risks of the injury-producing instrumentality, it follows that the injury also arose out of employment. Most, but not all, courts have held the actual risk of the employment will include most of the risks of the worksite – which is now the home in many cases. The risks of injury in the home are much more varied than those in the traditional workplace. Those risks of injury may include dogs, exercise bikes, stairways to the basement, slippery kitchen floors, and toys left in the hallway. Once it is established that the home premises are tantamount to the work premises, it follows that the hazards of the home premises encountered in connection with the performance of the work are also hazards of the employment. So long as the employment subjects the employee to the actual risks of the injury, the argument follows that the injury should be compensable.
Actual Cases – Treadmills, Dogs, Stairs, Guns, and Needles -- What Would You Do?
There are very few Michigan cases that deal with this issue. The following cases illustrate how various courts around the country have analyzed whether certain at-home injuries arose out of and in the course of employment:
- In Maine, the Supreme Judicial Court affirmed an award of death benefits to the widow of a financial advisor who died of a heart attack while exercising on his treadmill at his home. He was working on his Blackberry at the time. See Estate of Sullwold v Salvation Army, 2015 ME 4 (2015). The appellate court determined that the evidence supported the administrative law judge’s conclusion that the financial advisor’s death occurred “in the course of” his employment – because he was walking on a treadmill at the time of his death, the death occurred during work hours, in a place that the employer sanctioned for his work, and while the employee was using a Blackberry that the employer provided him for that work. The court stressed that the use of the treadmill allowed the advisor to work while he exercised – meaning the use of the treadmill was a risk of the employment. Thus, his death also “arose out of” the employment.
- Last year, in Sedgwick CMS v Valcourt-Williams, 211 So. 3d 1133 (2019), the District Court of Appeals of Florida reversed an award of workers’ compensation to a home-based claims adjuster. During working hours, the claimant, while reaching for a cup of coffee, tripped over one of her dogs. She fell and sustained injuries to her knee, hip, and shoulder. The administrative law judge awarded benefits. Her employer appealed. The appellate court reversed the award of benefits and held that it was Ms. Valcourt-Williams’ non-employment life – that is her dog, her kitchen, her reaching for a coffee cup – that caused the accident. As a result, the court held that the employer did not contribute to the risk that Ms. Valcourt-Williams would trip over her dog. In a strongly worded, and likely more logical dissent, two judges noted that the claimant was on her coffee break – an activity specifically permitted by her employer – and that such a break was a necessary incident of her employment that made it possible for her to continue her work for eight hours. The dissenters considered the presence of the dog to be nothing more than a “neutral risk” – “no different than if she had slipped on a liquid substance on the floor.” It was, they said, an actual risk of her employment. The dissenting judges therefore would have awarded benefits.
- An appellate court in Oregon reached precisely the opposite result in a case with underlying facts virtually indistinguishable from the Valcourt-Williams case in Florida. In Mary Sandberg v JCPenney Company, Inc., 260 P.3d 495 (2011), the Court of Appeals of Oregon reversed the lower court’s denial of benefits. Ms. Sandberg’s employer required her to have an office in her home and her car, where she kept fabric samples and pricing guides. The employer instructed her to store excess products at her home. She stored samples in her garage. She was walking from the back door of her home to the garage to replace fabrics in her van when she tripped over the family dog. She sustained a right wrist injury. In reversing the lower court’s denial of benefits, the appellate court noted that Ms. Sandberg worked from home as a condition of her employment, which benefited the employer. Her home and her garage therefore constituted her work environment. The court noted that:
If the claimant tripped over a dog and injured herself while meeting with a customer in the customer’s home, her injury would arise out of her employment. The same is true here because the claimant was where she was, doing what she was, because of the requirements of her employment.
The court opined that the employer’s lack of control over the risk – here, the dog -- was immaterial. The court noted that although the employer had no control over Sandberg’s dog, what clinched it for Sandberg in the eyes of the appellate court was the complete control that Sandberg’s employer had over whether she worked remotely. The court determined that Sandberg’s home premises were also her work premises – and it followed that the hazards Sandberg encountered when performing work at home were essentially the hazards of her employment. These hazards included the family dog. Thus, the court held the injury both arose out of and occurred in the course of her employment.
- In a Pennsylvania case, the appellate court reviewed a claim by an employee who was working from home when she fell down the stairs while descending to her home office. She sustained an injury to her neck. She was working from her home basement office that day, and left her home office to go upstairs to the kitchen to get a drink. She fell when returning to the home office to answer a ringing telephone. The appellate court affirmed an award of benefits to the worker, reasoning that the employee was authorized by the employer to work from home; she was actually working prior to leaving her home office to get a glass of juice; and she had only deviated briefly from her work activities at the time of the injury. The court determined that the home work office was an approved “secondary work premise” and determined that the injury occurred while the employee was engaged in the furtherance of the business and affairs of the employer. See Verizon Pennsylvania v Workers’ Compensation Appeal Board (Alston), 900 A.2d 440 (PA Cmwlth) (2006).
- The Minnesota Workers’ Compensation Court of Appeals reached a similar result in Munson v Wilmar-Interline Brands, Workers’ Compensation Court of Appeals No. WC08-205 (Dec 16, 2008). In this case, the employee was injured while descending stairs to get a cup of coffee while he was working from his home office. The employer in that case required the employee to maintain a home office as part of his job as a sales representative. On a Saturday morning, the employee was planning to prepare a month-end sales report. He connected to the company server and prepared the report, but had some technical difficulties. He decided to take a break, and proceeded to go downstairs to the kitchen to get a cup of coffee. As he went down the stairs, he slipped and fell onto his back. The court specifically determined that the injury in that case occurred under circumstances “no different than where an employee, while working at the employer’s main facility, takes a coffee break and walks to the break room, sustaining an injury in the process.”
- In a Mississippi case that can hardly be regarded as recent, a claimant worked at home as a bookkeeper for a business. She performed all of her bookkeeping work at home with the consent, knowledge, and approval of the employer. She typically did this work in her living room, working on a small table that was drawn up to a couch in the room. On the night of the injury, she had eaten dinner, taken a bath, and put on her night clothes for the purpose of being ready for bed immediately after finishing her bookkeeping. She drew the table with her books on it to the couch and then removed her husband’s gun from the couch so that she could sit down. The gun went off, and as a result, she suffered the amputation of her thumb. In a four-to-four decision, the Supreme Court of Mississippi affirmed a compensation award. The majority opinion rejected a contention that in removing the gun she was doing household chores, since its removal was necessary in order for her to proceed with the work. There was a strong dissent that said “[t]his one is just too fantastic.” See Ready’s Shell Station and Café v Ready, 65 S.2d 268 Miss (1953).
- Similar in principle is an older Texas case in which a sales superintendent, whose duties involved being on-call at all times, had a telephone in his home installed and paid for by the employer. Just after completing a telephone conversation with his employer, he stepped on a needle and ran it through his foot. The Texas Court of Appeals affirmed an award of compensation, holding that answering the call was within the course of the claimant’s employment, and the risk of injury posed by a needle in the carpet was an actual risk of employment – making the injury also “arise out of the employment.” See Security Union Ins. Co. v McClurkin, 35 SW.2d 240 (Tex Civ Ct App 1930).
A Legal Framework for Making Compensability Determinations
Clearly, it will be important for you to ascertain and consider a variety of factors when analyzing whether the claimant’s injury occurred in the course of employment:
- The time, the exact place, and the circumstances of the alleged incident.
- Whether the incident occurred during work hours.
- Whether the injury took place in a designated work area.
- Whether the claimant was engaged in the work of the employer at the time of the injury.
- Whether the claimant was engaged in an incidental task, such as those for “personal comfort.”
- Whether the employee’s incidental activity was prohibited by the employer, or so remote from customary or reasonable practice that it constituted a complete departure from the course of employment.
- Whether the claimant was deviating from work activity at the time of the injury – and, if so, how significant was the activity or geographic detour.
- Whether the injury-producing instrumentality (risk of harm) was a risk associated with the workplace (the home work site), or whether it was an instrumentality so completely personal to the claimant that it did not arise out of the employment relationship. This part of the test is not the relationship of an individual’s personal quality (or fault) to an event, but the relation of the event to the employment. Perhaps it is useful to think of it in this way – if the claimant had been doing her work in the employer’s premises, or in a café, and the event had happened in the same manner (a trip over a dog, or a fall down the stairs, for example), would you believe the injury arose out of the employment.
The factual scenarios you will soon encounter will undoubtedly be unique. At-home injury claims can be very complicated to evaluate. If you have questions or would like to discuss a claim, please do not hesitate to reach out to a member of the Foster Swift workers’ compensation practice group – we are here to help:
Previous Foster Swift E blasts pertaining to the impact of the coronavirus pandemic on Michigan workers’ compensation:
- Psychiatric Workers’ Compensation Disability Claims in a Pandemic Environment
- Impact of Executive Orders on Reduction and Termination of Benefits
- Updates to Workers' Compensation Issues Raised by Coronavirus and New Emergency Rules for "First Responders"
- Michigan's Emergency Rules Give Personal Injury Presumption to "First Response Employees" with COVID-19
- The Workers' Compensation Issues Raised by Coronavirus Pandemic and Michigan's Newly Promulgated Emergency Rules for "First Response Employees"
Mike devotes his practice to the representation of employers, insurance carriers, and third-party administrators in workers' compensation matters throughout the state. He is the author of several published law review articles on workers' compensation topics, and he is a frequent lecturer on this topic.View All Posts by Author ›