Fruin: How to Address Workers' Compensation Claims From Telecommuters

Friday, April 17, 2020 | 0

Given Washington’s stay-at-home orders, many employers made quick arrangements to have a significant amount of their workforce telecommute from home.

Shawna G. Fruin

While this change to remote work is generally positive (allowing workers to keep jobs, assist the economy and keep vital work functions moving despite the COVID-19 impact on the world at large), employers may struggle to assess what constitutes a compensable workers’ compensation claim for their remote workforce.

For Washington, the general rule is that workers injured in the course of employment are entitled to workers’ compensation benefits. “Course of employment” means the worker is acting at the employer’s direction or in the furtherance of the employer’s business.

Washington does not have an “arising out of employment” rule and, therefore a worker can be in the course of employment even if not doing his or her usual work at the time of the injury. Because Washington is one of only a few states that does not have an “arising out of employment” rule, cases from other states are generally not helpful for understanding course of employment in Washington.

There are very few Washington cases expounding on the course of employment rules in Washington. What we know so far is:

• Location. The specific parameters of a telecommuter’s job site will, of course, vary for each worker, but at least in one case, the board held that the job site is probably just the location of the desk and phone.
• Hours. As long as the employer does not require the telecommuting worker to work all hours, the telecommuting employee will not get “continuous, 24-hour a day, seven-day a week” workers’ compensation coverage. However, if a remote worker is required to work, be available or be on call for all hours, then he or she could be covered by the Industrial Insurance Act at all times he or she is at the job site.
• Activities covered. Just because a telecommuting worker is injured during work hours does not necessarily mean he or she is in the course of employment and has a compensable claim. The relevant inquiry for purposes of workers’ compensation is whether the injury is related to a risk of employment or is incidental to the course of employment. The Washington Court of Appeals held that when determining compensability, the decision-maker should “focus narrowly” on the activity that caused the injury. The court denied a workers’ compensation claim for a telecommuting worker who was injured during work hours but was not acting at the employer’s direction or in the furtherance of the employer’s business.
• Personal comfort. One general exception to the course of employment definition is that injuries that occur within the time and space of employment, during “personal comforts” (incidental, minor deviations from work duties) are generally compensable. Examples of personal comforts are eating, drinking, using the restroom and smoking. Personal comforts are different from work departures that are so great that an intent to abandon the job temporarily may be inferred. An example of a non-compensable deviation is when a telecommuting worker logged off her computer, left her home job location and job duties, went for a walk on a public street with her dog and sustained an injury.
• Lunch break. In addition to injuries in the course of employment, the Industrial Insurance Act applies to lunch breaks on the job site (the premises that are occupied, used or contracted for by the employer for the business or work process in which the employer is then engaged), or lunch breaks off the job site if the worker left the job site under the employer’s direction, control or request. For telecommuting workers, the job site may mean only their desk or work station, but the law is not developed on this issue. Injuries during the lunch break may be compensable even if they are unrelated to eating, so long as the decision-maker finds that it was not an “unreasonable deviation” from the course of employment.

To aid in future compensability determinations, we recommend developing a telecommuting policy and contract with your human resources department and general counsel. This contract should outline your company’s telecommuting rules. You should review the contract with your employees so they understand the policy, and obtain the remote workers’ written acknowledgment.

Your policy should define the job site, hours and duties of the employee’s remote work. You should consider including the employer’s option to rescind telecommuting privileges, consent for the employer to enter the home for post-accident investigation, and guidelines for a safe working environment. You may want to ask workers to send pictures of their job site so you can ensure compliance with safety protocols and document the parameters of the job site.

If a remote worker files a workers’ compensation claim in Washington, the case law above and a good telecommuting policy should help determine whether the injury is compensable.

Shawna G. Fruin practices workers’ compensation defense and is a resident at Reinisch Wilson Weier PC's Portland, Oregon, office. This column is republished with permission from the firm's website.