Prior to the COVID-19 outbreak, many employers found it beneficial to convert their employees from a commercial office space environment to a work-from-home status. Whether employees are full-time work-from-home employees or have work-from-home privileges a few times a week or month, workers’ compensation claims can and do arise while workers are working from home and require careful consideration to limit risk.
New York
New York has had a “home office exception” for compensable accidents since 1968. Employees who work from home, outside the direct physical control of their employers, can alternate between work-related and personal activities when they choose. For this reason, injuries sustained by employees working from home should only be found to be compensable when they occur during the employee’s regular work hours and while the employee is actually performing her employment duties.
In a 2019 decision, the Workers’ Compensation Board disallowed a claim for benefits from an accidental injury sustained while a Claimant was moving office furniture during his lunch break. See 2019 NY Wrk. Comp. LEXIS 4888, 2019 NY Wrk. Comp. 1953353 (N.Y. Workers’ Comp. Bd. May 3, 2019). In this matter, the claimant had a telework agreement with his employer. His employer provided him with a computer tower, two monitors, and a keyboard. The employer refused to purchase home office furniture for the claimant. The claimant, therefore, purchased his own furniture, and while on his lunch break, and carrying the furniture into his home, sustained injury.
A Workers’ Compensation Judge, after hearing testimony, found that the claimant’s injury did not arise out of or occur during the course of the claimant’s employment. The Judge based their opinion on the fact that the employer did not pay for the furniture, and that the claimant was on his lunch break. The claimant moved for Full Board Review. The Workers’ Compensation Board disallowed the claim. In its opinion, the Board discussed that working from home provides workers with a greater ability to switch from work functions to purely personal functions. Accidents that occur while performing a work duty while working from home, should be the only accidents deemed compensable. Injuries which occur while the claimant is not actively performing his or her work duties, such as taking a short break, getting something to eat, exercising or using the bathroom, for example, should be found to have arisen from “purely personal activities [that] are outside the scope of employment and not compensable”. Matter of McFarland v Lindy’s Taxi, Inc., 49 A.D.3d 1111(2008). As the claimant was not performing a work duty at the time of his injury, and the furniture was not purchased by the employer, the Board disallowed this claim.
Whether an injury is compensable for a telecommuting employee is a fact-specific inquiry in New York. Employers should work with defense counsel to provide telecommuting agreements, if applicable, as well as provide a list of any materials that the employer furnished. When appropriate and possible, an employer should conduct periodic checks of employee home offices to help identify and eliminate work area safety hazards.
New Jersey
New Jersey has several cases of work from home accidents which have been deemed compensable, and a few which have been denied, and generally follow a similar legal analysis to New York. In Renner v. AT&T, 218 N.J. 435 (2014), the Petitioner passed away in September of 2007 as a result of a pulmonary embolism. Per her teleworking agreement, Ms. Renner was allowed to work from home several days a week. After her death, Ms. Renner’s husband filed a dependency claim for benefits, and a workers’ compensation judge awarded benefits. The Petitioner’s expert opined that Ms. Renner’s sedentary work contributed to her embolism, and placed more weight on her sitting for extended periods of time due to the deadline-driven nature of her job, than her preexisting underlying health conditions. AT&T’s expert opined that Renner’s underlying health problems contributed to the blood clot, which ultimately traveled to her lungs. The Appellate Division reversed the Workers’ Compensation Judge’s award of benefits and remanded for further proceedings.
Under Section 7.2, “the employee must prove by a preponderance of the evidence that the injury or death was produced by a “work effort or strain” involving a substantial condition or event happening in excess of daily wear and tear of Claimant’s daily living.” See N.J.S.A. 34:15-7.2 The Supreme Court held that there was no showing that the Petitioner’s death resulted from a work effort or strain in excess of the daily wear and tear of her job. The Supreme Court explained that her job responsibilities did not keep her in cramped conditions, or maintain that she sit for the entire day.
Another case, Benvenutti v. Scholastic Bus Co., No. A-3732-11T1, 2013 N.J. Super. Unpub. LEXIS 739 (App. Div. Apr. 4, 2013) explores the legal implications of a Petitioner who is performing work-duties outside of her place of employment. Benvennutti was employed by a bus driver for the respondent. After dropping children off to school, she was sweeping the school bus while she parked the bus in front of her home. While sweeping, she tripped over a mat on the bus and injured her left ankle. The workers’ compensation judge awarded benefits. The respondent appealed, stating that this accident did not occur during the course of the Petitioner’s employment.
The Appellate Division affirmed theaward of benefits. Citing Jumpp v. City of Ventonor, 177 N.J. 470 (2003). Per Jumpp, “when an employee is assigned to work at locations away from the employer’s place of employment, eligibility benefits generally should be based on a finding that the employee is performing his or her prescribed duties at the time of the injury.” Id. at 483. The Appellate Division applied Jumpp and found that the Petitioner’s testimony that sweeping the bus and inspecting the seatbelts was part of her job expendabilities. As the Petitioner was performing a duty of her job off-site, an award of benefits is appropriate.
Alternatively, the Appellate Division cited Jumpp in Kamenetii v. Sargillo & Sons, LLC, No. A-0394-16T3 2019 N.J. Super. Unpub. Lexis 1833 (App. Div. Aug. 8, 2018) to deny workers’ compensation benefits and distinguish when an off-site activity should be considered in the course of employment. The Petitioner in Kamenetti was a truck driver who stopped a truck stop to take a shower. He sustained injury while in the shower area. The Appellate Division determined that, unlike in Jumpp, Kamenetti was doing a personal chore and him stopping to take a shower was not a requirement of his job. Therefore, Kamenetti was not entitled to workers’ compensation benefits.
For both the New York and New Jersey claims, it is clear that the overarching theme is that for an employee to have a compensable out of office claim, he or she must have been working in furtherance of his or her job. These claims will be very fact-specific, and defense counsel must be able to pinpoint official work duties from personal activities. Defense counsel, when faced with work from home claims, must do a thorough investigation of the facts surrounding the injury. In some instances in New Jersey, it may be helpful for a practitioner to file a motion requesting to propound first notice of injury interrogatories since there may not be an injury report. Similarly, in New York testimony of the Claimant, a detailed review of the C-3 and a pre-hearing discussion with the employer will be invaluable for establishing the circumstances surrounding the injury.