When Employees Work From Home: Work Comp Subrogation and the Remote Employee

When employees work remotely from home or other locations, the normal rules of course and scope can become complicated and confusing. The same is true of subrogation potential. When the employee is injured in their home, subrogation targets tend to shrivel up and blow away. Cybersecurity can also be greatly compromised when an employee utilizes an unsecured or public Wi-Fi source and works from home using an unsecure personal laptop, notebook, cell phone, or other electronic device. In the wake of the global pandemic involving the COVID-19 coronavirus, employees across the globe are being told to work from home or given that option. Claims handlers and subrogation professionals should be aware of the many legal nuances that arise when employees work from their couch or the local Starbucks.

The cost savings of having employees work from home has made such an arrangement a growing phenomenon. But injuries occur at home just like they do in the workplace. As a general rule, if an employee deviates from performing their job for a personal benefit and is not furthering the business of the employer, then any injury that occurs during the period of deviation is usually not considered within the course and scope of employment and, therefore, is not covered. Once the employee returns to the workplace or returns from the deviation to the course of employment, then any injury that occurs after that point is covered. This line is fairly bright when you have employees leaving the office and traveling to lunch. But is a trip and fall while walking to the refrigerator for lunch when working at home considered in the course and scope?

Horseplay is usually not a covered activity in most states. If the employee is feeding their cats or emptying a litter box while at home, is it covered? When the instrumentality of the injury is solely within the province of the employee and the employee can say just about anything regarding what caused the injury and when it occurred, employees injured while working at home must be handled differently for purposes of both the initial claims handling and subrogation. Different questions must be asked, and different standards must be adhered to.

Claims concerns and nuances involving remote employees is not limited to worldwide pandemics. According to a report by the Bureau of Labor and Statistics published in 2010, nearly 24% of American workers reported routinely doing some or all of their work from home. A recent study revealed that more than 60% of the world’s work force works at least one day a week remotely and that almost 50% of all employees work half the week outside of the office.

Employers who are concerned with workplace safety have little or not control over the employee’s home office environment. The challenges are not the employers’ alone, either. Employees also have increased challenges and risks when working from home. It is much more difficult to prove that an injury was work-related because there is usually less evidence available in these home office scenarios. An accident at a business or job site may have witnesses or be caught on security footage. Work at home employees are often all by themselves while they work, so there is often no one present to corroborate a sudden injury or accident or to help determine the precise conditions of the injury.

In Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Alston), 900 A.2d 440 (Pa. Cmwlth. 2006), the employee was working remotely at home when she fell down the stairs to her home office and injured her neck. She was working from her basement and left her basement office to go upstairs to the kitchen to get a drink. She returned in a hurry to answer a ringing telephone and fell down the stairs in the process. She filed a claim insisting that she was furthering her employer’s business interests at the time (trying to answer the ringing phone) but was doing so while returning from getting a drink. The employer argued that she was not in course and scope because she had gone upstairs to get a drink.

In Pennsylvania, in order to establish a right to compensation under the Act, Section 301(c)(1) requires that the employee prove the existence of an employment relationship during which an injury arose in the course of the employment and was related thereto. Wachs v. Workers’ Comp. Appeal Bd. (American Office Sys.), 884 A.2d 858 (Pa. 2005). Section 301(c)(1) of the Act provides:

The term ‘injury arising in the course of his employment,’ as used in this article … shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere.

In Acme Markets, Inc. v. Workers’ Comp. Appeal Bd. (Purcell), 819 A.2d 143 (Pa. Cmwlth. 2003), the court stated that the Act sets forth two situations in which an injury may be sustained in the course of employment:

(1) where the employee, whether on or off the employer’s premises, is injured while actually engaged in the furtherance of the employer’s business or affairs, or

(2) where the employee although not actually engaged in the furtherance of the employer’s business or affairs (a) is on the premises occupied or under the control of the employer, or upon which the employer’s business or affairs are being carried on; (b) is required by the nature of his employment to be present on his employer’s premises; and (c) sustains injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon.

When an employee files a claim for injuries occurring somewhere other than the employer’s premises, Pennsylvania usually evaluates these claims by distinguishing between stationary and traveling employees. Here, the court determined that the employee was not “traveling”; she was working at her “home office,” a fixed location approved by the employer as her secondary work premises. Unlike the facts in the cases cited by the employer, however, the court noted that the employee did not leave the premises where she was authorized to work. For example, a worker who sustained injuries when she fell in a hole on the sidewalk while on a lunch break two blocks from the employer’s premises, was “serving her own purposes” in choosing to leave the premises for a lunch break and not furthering the purposes of her employer. Collins v. Workmen’s Comp. Appeal Bd. (American Society for Testing), 512 A.2d 1349 (Pa. Cmwlth. 1986). Other cases cited in Collins involved similar factual scenarios, where an employee either left the employer’s premises or conducted purely personal activities on the employer’s premises.

A Florida workers’ compensation claims adjuster named Tammitha Valcourt-Williams was working at home for Sedgwick CMS. Tammitha tripped over her dog during working hours while reaching for a coffee cup in her kitchen and filed a workers’ compensation claim. The Judge of Compensation Claims determined the injury was compensable, concluding that the work-from-home arrangement meant the employer “imported the work environment into the claimant’s home and the claimant’s home into the work environment.” Sedgwick appealed the compensability of the claim. In Sedgwick CMS v. Valcourt-Williams, 271 So.3d 1133 (Fla. App.), the Court of Appeals said the real question, however, was not whether an employee’s “home environment” becomes her “work environment.” The real question was whether the employment—wherever it is—”necessarily exposes an employee to conditions which substantially contribute to the risk of injury.” Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1068 (Fla. App. 2011); Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. App. 1995). The court said the relevant risk was that the employee might trip over her dog while reaching for a coffee cup in her kitchen. That risk exists whether the employee is at home working or whether she is at home not working. It existed before she took her job, and it will exist after her employment ends (so long as she maintains a home with a dog). Because the risk did not arise out of the employment, the Court of Appeals in a well-reasoned decision, announced that her injury was not in the course and scope of her employment.

Another thorny workers’ compensation claim issue arises with regard to the “Coming and Going Rule.” Although the rule varies from state to state, it generally states that if an employee is injured on their commute to or from work (in other words, “coming and going”) this is not considered within the course of their employment and would, therefore, not be covered. There are exceptions to this rule.

• Employee’s employment contract includes transportation to and from work;
• Employee has no fixed place of work;
• Employee is on a special mission for employer; or
• Circumstances are such that the employee was furthering the business of the employer.

In Schwan Food Co. v. Frederick, 211 A.2d 659 (Md. App. 2019), the employee slipped on ice on the sidewalk by his car in front of his home as he was going to drop off his child at the daycare on the way to work. The Commission denied benefits and he appealed. The Court of Appeals reversed the decision and held that whether an employee’s home qualifies as a workplace is established by the quantity and regularity of work performed at home, the presence of work equipment at home, and special circumstances of the employment. Even if an employee’s home qualifies as a workplace, the employee also has to show that he commenced his workday at the time he left to go to his first account in order to bring his injuries within the period of his employment. It also noted that whether an employee’s home qualifies as a workplace and whether he has commenced his workday and was fulfilling his work duties when he slipped on black ice presented questions of fact for a jury. It isn’t a given.

Sometimes having permission from an employer to work at home is the critical factor. In Martinez v. State Office of Risk Management, 582 S.W.3d 513 (Tex. App.-San Antonio 2018), a caseworker for the Texas Department of Family and Protective Services was injured while working at home on a Saturday. She was sitting at her kitchen table when she decided to retrieve a different pen from the other side of her kitchen. Martinez purportedly tripped and fell during this dangerous maneuver, breaking her shoulder and hitting her head. Her claim was denied because she violated agency policy by working from home without prior approval. Even though the Commission concluded that Martinez was “furthering the business and affairs” of her employer at the time of her fall, her injury did not arise out of nor occur in the course and scope of her employment. Martinez appealed and the Court of Appeals noted that the Texas Labor Code’s definition of “compensable injury” requires that the injury arise “out of and in the course and scope of employment.” Tex. Lab. Code Ann. § 401.011(10). Two elements are required:

• the injury must relate to or originate in … the employer’s business. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637 (Tex. 2015) (known as the “arises out of” element), and
• the injury must “occur in the furtherance of the employer’s business.” Id. (known as the “course and scope element”).

As is the case in most states, Texas law requires state employees to work only at their place of business unless travelling or with prior written authorization to work at home. Neither applied in Martinez’ case. In addition, she was violating Wage and Hour laws by working on Saturday. Tex. Govt. Code § 659.018. She was in violation of this statute and, because she had no prior authorization, the injury was not compensable.

Subrogation and Working at Home

If an employee is injured at home or while taking kids to the daycare prior to, during, or after the workday, the number of subrogation scenarios are drastically limited. A subrogated carrier cannot sue the employee in the name of the employee – neither can the employee. Note that this might actually be possible in the case of a death. See an article we wrote on the subject entitled, “How to Sue Yourself And Win.” The world of insurance claims is rapidly transitioning to remote claims handling, and this presents new injury hazards and obstacles which are not present in the workplace.

When employees are injured while working at home, an entirely new set of liability glasses must be donned. If the injury is caused by the employee’s roommate or the employee’s landlord, new questions of third-party liability must be examined. Subrogation counsel should be consulted in such situations, because the First Report of Injury and the first communications with the employee suddenly become subrogation-related—something most claims professionals are not accustomed to.

Cybersecurity Issues

Claims details, course and scope issues, and subrogation potential are not the only thorny issues involved with remote employees. When employees who are not used to working from home do so, they may not have or follow the correct cybersecurity procedures and may not be using a virtual private network (VPN) to help prevent being compromised. If they are compromised, the entire company is compromised. Work-from-home employees are particularly susceptible to phishing expeditions. This is especially true with emails posing as alerts regarding COVID-19. A phish can easily implant malware in a computer that can give hackers an opportunity to demand a ransom or steal data. A single instance or breach can cost an insurance company millions of dollars. It is an axiom of life that when employees are stressed and craving more information (as with COVID-19), there is an unusually large lack of commitment to security best practices. Employees’ guards are down, and they may innocently slink off to Starbucks to work from their laptops, potentially exposing all of the records on their computer to a potential breach. Employees working from home require more, not less, security protocols.