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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.

As coronavirus spreads throughout the country, the impact the virus will have on the workers’ compensation industry will continue to be studied.  A vast array of industries have workers categorized as “essential.”  Will these essential workers eventually have a path towards an established workers compensation claim?  As it currently stands in New York and New Jersey, there are limitations on what claims would currently give rise to an established COVID-19 claim. Turning to industry specific questions of compensability, we analyze the question of an airline employee’s claim for COVID-19.

There are two different theories in which an airline employee could file a workers’ compensation claim in New York State for diagnosis of COVID-19: as an occupational disease claim and as an accidental claim. For either theory to be successful, the burden is on the claimant to establish a causal relationship between his employment and his disability by competent medical evidence.

According to the CDC, it is likely that more cases of COVID-19 are going to be caused by community spread. The CDC defined community spread as meaning that “people have been infected with the virus in an area, including some who are not sure how or where they became infected.” As more people contract the virus, and less people know how or where they became infected, it will become more difficult for a claimant to show, through competent medical evidence, that there is a causal relationship between their employment and the virus.

For an occupational disease claim-the claimant would also need to prove that the disease arose “from the nature of employment … conditions to which all employees of a class are subject… and attach to that occupation a hazard….” Goldberg v. 954 Marcy Corp., 276 N.Y. 313, 319 (1938).The disease must result from a distinctive feature of the occupation. The claimant must establish a “recognizable link” between this distinctive feature and his condition through competent medical evidence. Matter of Phelan, 126 A.D.3d 1276 (3d Dept. 2015).

An airline employee most likely would not be able to establish COVID-19 as an occupational disease claim. In contrast, some hospital workers have been able to prove that an infectious disease contracted while at work in the hospital is compensable as an occupational disease. This is because a risk of catching a disease may be linked to their duties in dealing with infected patients. Case law has not yet expanded to other industries in this same way. The Board has not found that airline employees have a distinctive feature of their occupation in regards to exposure to disease.

Turning to accidental claims; the claimant would need to show ‘injury’ and ‘personal injury’ arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom” (WCL 2[7]). “While a compensable accidental injury may either result from a single catastrophic event or develop gradually over a reasonably definite period of time, it must be demonstrated that a specific aspect of the claimant’s workplace was a contributing factor in bringing about the injury” ( Matter of Newton v Sears Roebuck & Co., 293 AD2d 862[2002]. To establish that the accidental injury developed gradually, rather than suddenly, the claimant must “demonstrate by competent medical evidence that [it] resulted from ‘unusual environmental conditions or events assignable to something extraordinary’ at his workplace” ( Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890 [2008], quoting Matter of Harrington v Whitford Co., 302 AD2d 645 (2003), quoting Matter of

Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 [1994]).

The NY Workers’ Compensation Board could possibly find that the COVID-19 pandemic is “something extraordinary;” however, this finding would not relieve the claimant of the requirement of bringing forth competent medical evidence specifically diagnosing the claimant with COVID-19.  Additionally, the Board will most likely find that the claimant would still need to prove specific and direct exposure to COVID-19 while at work.  In a review of Board Panel decisions throughout the years, there is a lack of case law specifically dealing with airline workers and infectious/communicable disease spread while in the course of employment.  While these are unprecedented times, we do believe that each airline COVID-19 case should be taken on a case-by-case basis with the majority of the claims most likely disallowed for lack of specific medical evidence and direct and specific proof of contact and exposure to individuals diagnosed with COVID-19.

New Jersey:

Under the New Jersey Workers’ Compensation Statute, an injury is either classified as a single accident, sustaining a permanent partial (or total) disability, or an occupational disease.

N.J.S.A. 34:15-36 defines permanent partial disability and explicitly notes, “Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.” For many of the individuals afflicted, COVID-19 presents as a minor respiratory infection. The definition of permanent partial disability suggests that in those instances, COVID-19 would not be compensable. As such, an airline employee who claims COVID-19 exposure, but only manifests minor symptoms would have difficulty maintaining a workers’ compensation action.

There is also a provision for compensable occupational diseases contained in the New Jersey Workers’ Compensation Statute. Therein, a disease is deemed compensable if it arises out of or in the course of employment and is due to a material degree of causes and conditions which are characteristic of a place of employment or are peculiar to a certain trade. See N.J.S.A 34:15-31. A  single, isolated case of COVID-19 would be difficult to prove. A petitioner most likely would not be able to prove that COVID-19 was caused by a characteristic of his or her work, given the virus can be caught in the general public. The occupational exposure claims are often occur as a result of exposure over a period of time, rather than a single event. In the context of the airline industry, this would also be difficult for an employee to prove. Particularly when faced with a pandemic.

The New Jersey Workers’ Compensation Statute and case law demonstrates an absence of evidence to support the compensability of claims for infectious disease during times of a pandemic. There is, however, an exception for emergency service workers. Emergency service workers are defined under N.J.S.A. 34:15-31.4. Airline workers would not fall under these provisions. The provisions of the statutes outlining exceptions for emergency service workers are just that, exceptions to the workers’ compensation statute. While emergency service workers may be able to establish claims for exposure to infectious diseases, the statute exception was designed to provide protections to individuals on the front lines of illness exposure.