As an increasing number of states issue stay-at-home orders for all but essential businesses in response to the COVID-19 pandemic, a secondary concern arises out of the increased number of employees working from home, or telecommuting. Even prior to the outbreak of COVID-19, telecommuting challenged the traditional notions of compensability, blurring the lines between the personal and professional. With an increased number of employees forced to work from home, there is sure to be an increase in the number of alleged work injuries occurring at home.

For there to be a compensable workers’ compensation claim, there must be an injury or occupational disease that occurs in the course of, and arising out of, one’s employment. The course of employment refers to the time, place and manner of the injury.  Generally, an employee is in the course of his/her employment when they are performing activities consistent with the contract for hire. An employee must be performing some required duty, directly or indirectly, in the employer’s service as opposed to performing some personal business. As with every workers’ compensation claim, these claims will be very fact driven and dependent upon the governing state law.

An injury arises out of employment when there is a causal connection between the injury and employment. Jurisdictions generally employ a totality of the circumstances test to determine if an injury arose out of employment. A non-exhaustive list of factors when considering the totality of circumstances includes: the proximity of the accident to the place of employment, the degree of control the employer had over the scene of the accident and the benefit the employer received from the employee’s presence at the scene of the accident.

This is a conjunctive test and both prongs must be satisfied for a claim to be compensable.

It would seem likely that most employees forced to work from home because of the COVID-19 pandemic would be considered to be in the course of their employment, as their home has become a regular work site, so long as the injury occurred in furtherance of the employer’s business.

The primary inquiry, however, will be whether the injury arose out of employment, as working from home provides ample opportunity to blend professional activities with personal ones. Defense of these claims will require a factual inquiry into the nature of the injury and the circumstances surrounding it.

During this time, there is sure to be an increase in employees who report injuries that occurred while working from home. As with every workers’ compensation claim, these claims will be very fact driven, so it is essential that the facts of each case be investigated thoroughly to determine whether the essential elements have been met. Knowledgeable workers’ compensation counsel can advise you on crafting work-at-home agreements, as well as the actions to take, and the questions to ask, to ensure proper investigation and defense of the claims that do arise.

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