Covid-19 Resources: California

On March 19, 2020 Governor Newsom issued an Executive stay at home order for preservation of public health and safety throughout the State of California.  With this order and the continued spike in COVID-19 cases, more of California’s workforce is working remotely meaning more employees are working from home.  When the home becomes a work place, what injuries are deemed industrial?

In the case of Santa Clara Valley Transp. Auth. v. WCAB, (Tidwell) 82 Cal. Comp. Cases 1514, (2017) the court found the applicant’s injury in the bathroom while working at home was compensable.  The injury occurred when applicant, who was in a wheelchair due to a nonindustrial disability and was working at home, fell while transferring back to her wheelchair after using the toilet following a bathroom break. Her employer had given the applicant permission to work from home and she had done so for 10 months before the injury.  The WCJ observed that any preference expressed by applicant for working at home was for health and safety reasons.  The WCJ also noted that applicant was attending to her most basic personal and incidental need during the workday when she was injured and that, consequently, under the personal comfort doctrine, her injury in the bathroom while working at home was compensable.

In Kidwell v. WCAB, 33 Cal. App. 4th 1130, 39 Cal. Rptr. 2d 540 (1995) the Court found an injury resulting from an off-duty recreational activity compensable.  The applicant was at her home practicing a jump that was required in order to pass a fitness test given by her employer. The applicant claimed she has working within the course and scope of her employment when injured while attempting to do the jump.  The Court found petitioner’s belief that practicing the jump for respondent employer’s fitness test at home was job-related, was an objectively reasonable belief and thus, her injury was compensable.

How to decide if a case is work-related when the employee is working at home?

Title 8 CCR §14300.5 gives some guidance. 

(7) Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting. For example, if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. If an employee's fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment, the injury is considered work-related. If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.
 
Based on the potential for liability when presented with these claims, employers should carefully examine the facts. 

When did the claimed injury occur? How did the claimed injury occur?  Was it during the day or at night? Were there any witnesses? What was the mechanism of injury? Was the employee performing work-related tasks at the time of the incident?

Further, since employers have a general duty to provide a safe work environment, fulfilling that duty potentially becomes more difficult for employees who work from home beyond direct employer contact.

• Employers should consider providing a safety checklist, to control the risk of injury and to remind employees that they are required to comply with all workplace safety rules even when working from home. 
• Employees should also be instructed to immediately inform the employer of any injury suffered in the course and scope of employment.
• Employers should specify the work to be performed at home and all work-related tasks.

Ultimately, the more prepared and detailed you are in your policies and procedures to employees working from home, the better equipped you are in fighting any potential workers’ compensation claim.
 
Testan Law stands ready to assist you.