Managing Work Injuries in the New “Work From Home” Era

By James V. Thompson

With the COVID-19 outbreak now ongoing, employers and human resources managers everywhere are under siege in the dual-front battle to keep business operations continuing as efficiently as possible.  While many employers have had to shut their office doors, others have adapted by allowing employees to work from home. 

While some employers have allowed employees to work from home for several years, others are new to this process and arrived at this decision only out of necessity, not convenience.  Those new to this process may soon realize that concerns abound when employees are out of their usual employer-provided and controlled work environment.  One concern is the risk of a “work injury” and a potential workers’ compensation claim.  How does an employer protect against or properly investigate a work-related injury for an at-home teleworker?

In my home state of Tennessee, compensability requires that an injury arise primarily out of and in the course and scope of the employment.  The “primarily” qualifier requires evidence that the employment contributed more than fifty percent (50%) in causing the claimed injury, considering all causes.  Occupational diseases (including diseases of the lungs) are allowable but must still be more than 50% caused by the employee’s work.  Tennessee added the “primarily” qualifier in recent years to appeal to management and business communities; previously, the causation question enjoyed a more liberal, pro-employee interpretation.  By comparison, the statutory standard for a compensable injury in our neighboring state of Mississippi requires that it arise out of and in the course of employment.  An occupational disease arises out of and in the course of employment if there exists evidence of a direct causal connection between the work performed and the occupational disease.

Old Cases Provide New Insight

Considering these statutory provisions, a few interesting Tennessee and Mississippi cases stand out in determining what might be considered a compensable injury for an employee now working from home.  These court opinions help illuminate the factors to consider when answering the questions of “arising primarily out of work” and “direct causal connection to work.”

The Tennessee Supreme Court in 2007 rejected a claim that an employee working from home, with the approval of her employer, sustained a compensable injury when a neighbor entered her home and brutally assaulted her.  See Wait v. Travelers Indemnity Co., 240 S.W.3d 220 (Tenn. 2007).  The Tennessee Court agreed that the injurious incident occurred in the course of her employment—at a place where the employer could reasonably expect to find her, and while she was on a meal break, similar to an employee’s meal break at an employer’s traditional workplace.  However, the Tennessee Court found that the assault did not arise out of the employment because no evidence indicated a causal connection between the work and the assault.  The employee was not attacked because she was identifiable as the employer’s employee, was performing a job duty, or was safeguarding the employer’s property.  The attacker did not single out the employee because of her association with the employer or because the employment indiscriminately exposed the employee to dangers from the public.  Thus, no sufficient proof established that the work caused the risk of harm to the employee away from her usual workplace.  Note that the Wait case was decided even before the enactment of the stricter “arising primarily” standard.  Despite the lowered standard there was no proof that the conditions of the work, performed at home, caused this injury.

In contrast, a recent Tennessee opinion throws a new curveball to employers:  what about an aggravation at home of a prior compensable injury?  In Ogden v. McMinnville Tool and Die, 2018 WL 2173724 (Tenn. WC App. May 7, 2018), the employee tripped and fell at work, sustaining a clearly compensable arm injury. Following that, the employee developed a pain-syndrome condition necessitating a spinal cord stimulator, thereafter, developing weakness in his right leg as a common side effect.  While employee was at home, he began experiencing pain, went to his garage to retrieve his cell phone, and fell on some steps after his leg buckled.  The Tennessee court found that this aggravation was compensable as a direct and natural result of a previously compensable injury.  The employee did not act negligently, recklessly, or intentionally, to break the causal chain between the work and the injury.  Thus, an employee’s activity at home could still bring liability to an employer if it aggravates a prior compensable injury.

In Mississippi, an older state Supreme Court case also raises eyebrows over employees injured while working from home.  In Joe Ready’s Shell Station and Café v. Ready, 65 So.2d 268 (Miss. 1953), an employee of a gas station worked at the station during the day, then performed bookkeeping work for the employer at her home at night.  The employee regularly performed her work at a small table while sitting on her couch.  The employer knew and approved of her bookkeeping work at home.  One evening, the employee moved her husband’s gun from her couch to start her work.  When she moved the gun, it discharged, wounding her hand.  The primary question before the Mississippi court was whether the injury was sufficiently employment related. The employer argued that moving the gun was a household duty unrelated to the work.  The employee claimed that she moved the gun in order to perform her bookkeeping work, not merely to tidy up the house.  The Mississippi court was evenly split, resulting in the lower appellate court’s ruling for the employee being upheld.  The Court’s plurality opinion favoring the employee found that it was necessary and reasonable for the employee to remove the gun in order to begin her bookkeeping work.  The employee’s work at home had been ongoing for five years, during which she performed her duties at a table pulled up to the same couch on which the gun had lain.  As well, the Court analogized to the same act, yet performed on the employer’s premises:  if the employee had moved the gun to sit at her desk or workstation at the employer’s premises, would the injury have been considered work-related?  In contrast, the four dissenting justices determined the employee was acting as a housekeeper—not a bookkeeper—in moving the gun to place it back in a closet.  The dissenters determined no hazard or condition related to the gas station caused the alleged injury, and the gun was not connected with the employer’s business.

Pointers for Employers’ Investigations

So, what lessons do these cases offer employers whose workers are now working from home?  Clearly, employers cannot disregard claims simply because they occur off the employer’s premises.  Employers should be aware that the primary question is whether the injury arises out of the work.  Is there a direct causal connection between the work duties and the sustained injury?

First employers should determine why employees are working from home.  Are these employees working at home for their own convenience?  Even so, are they doing so with the employer’s approval and authorization?

Secondly, employers should also determine the nature of the employee’s specific work activities, duties, and working conditions.  What does each employee need to do to perform their work activities?  What risks or hazards exist in performing those work activities, especially in a new home office setting?  In comparison, what risks or hazards were present regardless of his or her work activities?

Next, did the employee have a pre-existing work-related injury?  If so, is his or her current physical problem a direct consequence of that work injury? Did the activities while working directly create an aggravation claim?

In answering these questions, employers should be sure to carefully investigate and document the situation.  Obtain a detailed statement from the employee as to what he or she was doing when the claimed injury occurred.  Capture details as to the employee’s “work at home” environment and how the injury unfolded.  Written statements signed by the employee are good; recorded statements, with an opportunity for follow-up questions, are even better.  Obtain photos of the workplace setup.  If photographs would be appropriate or important in the usual work setting, then there should be no objection to an employer seeking photographs in an off-premises work injury claim.

When injury claims arise with employees newly working at home, employers should keep in mind the primary question is whether there is a sufficient causal connection between the work duties and the injury claimed, even if those work duties occur in an unorthodox office location.