After COVID-19 pushed employees to work from home, employers have speculated whether this new paradigm will remain. While there is no crystal ball for the future, work from home may likely persist and, depending on the specific job, increase given the experience employers had during the pandemic. As such, what should businesses know about work-from-home injury claims? What types of these claims should businesses expect, how should employers respond and what might make these claims compensable? Lastly, what are some employer strategies to plan for such claims?
Types of work-from-home injury claims
Depending on the type of work, employees working from home may experience injuries mirroring those normally seen while working at an employer’s place of business; however, working from home may also bring about unique or unexpected hazards or even distractions caused by interactions with others in the employee’s household. Naturally, the type of job being done from home will drive the possible spectrum of injuries, but no injury should be presumptively ruled out beforehand. Back or neck injuries, carpal tunnel injuries from repetitive hand use or even trip or slip and falls may occur.
How should employers respond to work-from-home injury claims?
Employers’ responses to work-from-home injuries should generally echo their current best practices with any work injury. Actual notice must be given to a supervisor within 90 days. If possible, employers should obtain the employee’s statement specifying the basic claim information, preferably in writing and signed by the employee. Investigation of the injury location, identifying and interviewing witnesses, procuring any videos from home security cameras and requiring post-accident drug and alcohol screens and a site inspection are all recommended. It is prudent to factor privacy limitations into these practices as well.
Is a work-from-home injury claim compensable?
Working from home, if approved and of benefit to the employer, could result in a compensable work injury (on the other hand, unapproved work from home could be deemed non-compensable). As with any work injury claim, the details are often unique and compensability can turn on nuanced facts.
The employer could be liable for workers’ compensation benefits if an employer authorizes employees to work from home, an employee claims a work injury occurred in the course of their work — at a time and place where the employee was expected to be — and the injury arose out of the job requirements. There could be applicable defenses under the Alabama Workers’ Compensation Act, such as alcohol intoxication or drug impairment, and any investigation should also consider these factors.
What are some strategies to plan for work-from-home injuries?
Previously, working from home was considered the exception, not the rule. Given COVID-19, many employers were forced to allow work from home, which created second and third order effects. Simply because employees are working from home, however, does not mean employers will be shielded from work injury claims. Conversely, work-from-home arrangements should not provide a blanket license for employees to block employers from setting parameters and arrangements to allow work from home. Indeed, there must be a compromise by both sides. Obviously, working from home negates direct supervision, opening the door for questionable behaviors or the increased likelihood of fraudulent or defensible claims. Employers should develop tailored management strategies to address these concerns.
The Telework Agreement
One suggested strategy utilizes a teleworking agreement, outlining:
- Specific work hours;
- A designated workspace, including instructions to ensure the set-up is ergonomically correct and safe;
- Workplace safety guidelines;
- Agreed upon break times/schedule;
- Times to clock in and out;
- Disallowing drinking or drug usage while working;
- Agreed upon procedures for home inspections (taking photos and video of the workspace) at the start of such an agreement;
- Agreed upon procedures for authorized inspections after a work injury claim; and
- Agreed upon drug/alcohol testing policies after work injury claims.
These telework agreement provisions provide a structure for evaluating and handling claims, although each situation is different and may require tweaking. Working from home gives employees greater flexibility, but with less supervision. Employees may have more uncontrolled or disorganized work environments, may face distractions and may multitask between personal and business activities. Given this, the telework agreement can help sort out legitimate from fraudulent, defensible or non-compensable work injury claims, while still providing balance with privacy concerns. Naturally, such teleworking agreements would have to be voluntarily entered into as part of a contract of hire or change in the employment agreement.
Increased Focus on Post-Accident Investigations
An increased employer focus on post-accident investigations is another strategy for handling work-from-home claims. In short, while the place of duty may have changed with employees working from home, the Alabama Workers’ Compensation Act has not changed. The employee would still be required to prove an injury occurred in the course of and arose out of the employment. Further, notice would be required as laid out under Alabama law and the normal defenses remain in effect. Of course, there may not be witnesses and, as the employee controls the location, there is a possibility evidence could be manipulated, hidden or spoiled.
“Spoliation of evidence” may be a key issue. It is strongly encouraged to report incidents immediately to allow employers to inspect the injury location and take videos or photographs as soon as possible to prevent spoliation. As mentioned, allowing employers access to inspect employees’ homes would be voluntary, but refusal could mean rejection of the teleworking agreement. Post-accident inspections, photographs and/or videos can also help identify possibilities for subrogation recovery from culpable third parties.
Whether work from home remains common in a post-COVID world remains to be seen. Permitting work from home may, on balance, be a better scenario for employees and employers for the foreseeable future, lessening COVID-19 exposure and allowing employers to continue operations and viability.
Ultimately, if an employee’s injury arose out of and in the course of their employment at a time, location and place where they are authorized to work, while furthering the business of their employer, there could be a compensable workers’ compensation claim. Anticipating possible pitfalls, however, can help employers mitigate such risks.
Carl “Trey” K. Dowdey III is a partner at Swift, Currie, McGhee & Hiers LLP, where he represents employers, insurance providers and claims professionals in various workers’ compensation cases throughout Alabama. Dowdey also defends employers against retaliatory discharge and co-employee liability claims, and handles automobile and premises liability defense litigation. He may be reached at [email protected].