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Injuries at Home or Due to the Home Office

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Revision as of 21:07, 17 April 2020 by Ealperstein (talk | contribs)

Apart from liability for injury or death resulting from industrial exposure to the coronavirus, employers could be liable for other injuries related to the COVID-19 crisis.

As discussed previously, state and federal measures called for social distancing, and a statewide stay-at-home order was issued in order to slow the spread of the virus. Many employees could not continue to perform their regular job duties. Many employers were forced to shut down and lay off their employees.

Many employers require employees to work from home. Arguably, the requirement to work at home actually is imposed by the government, not the employer, but allowing this arrangement still opens an employer to liability for injuries workers sustain in their homes or while they commute from home to a job site.

INJURIES WHILE WORKING FROM HOME

As discussed in Sullivan on Comp Section 5.59, under the personal comfort doctrine, an injury at work may be compensable even though it occurred while the employee was engaged in an activity necessary for personal comfort, convenience or welfare. An employee is not required to be performing a job related activity for the injury to be compensable. This would be true even if the employee did not have the corona virus. It would be an injury on work premises, which is enough.

The California Supreme Court has explained, "The rule is broad enough to include the majority of an employee's acts upon the employer's premises, such as eating lunch, getting a drink of water, smoking tobacco where not forbidden by the employer, attending to the wants of nature, changing to or from working clothes, and many others.”[1]

The Supreme Court has explained that the personal convenience exception is not limited to acts performed on the employer's premises.[2] Instead, "Act of 'personal convenience' are within the course of employment if they are 'reasonably contemplated by the employment.'"[3] Moreover, issues as to whether an act is reasonably contemplated by the employment are resolved in favor of the employee.[4] This includes just about anything an employee does at work on the premises, and there is extensive case law regarding the compensability of injuries sustained in the parking lot, just outside of work, recreational activities and breaks. These considerations may well apply if the home is a second workplace and a claim is made. See generally Sullivan On Comp Chapter 5: Injury.

Of course, it must first be established that the home is indeed a second workplace. If an employee is laid off or furloughed, or just doesn't work at home, then injuries at home would not be compensable. As discussed in depth in Sullivan On Comp 5.50 Home as Second Job Site, employees who regularly drive to and from work have generally not had much luck claiming the home as a second workplace where they decide to do some of their work at home. The Supreme Court has expressly declined to create a "white collar exception" to the going and coming rule (below)[5]. The home will not be considered a second workplace unless impliedly or expressly required by the employer. it is not enough that the employee decides to do some work at home for their own convenience. With that said, in the present environment much of the population has been sent home to work expressly by their employers, and in these cases there isn't much doubt that the home is indeed not just a second workplace but the primary one.

In one case, the appeals board held that an applicant who fell using the bathroom while working at home was covered by the personal comfort doctrine. The applicant was in a wheelchair due to a nonindustrial disability, and the employer granted an accommodation allowing her to work from home. The applicant fell while transferring back to her wheelchair after using the toilet following a bathroom break.[6]

The appeals board found the applicant's home was her workplace since she was given permission to work at home. It then held the personal comfort doctrine applied to the applicant's injury. It concluded applicant was attending to her most basic personal and incidental need during the workday, and consequently, her injury in the bathroom while working at home was compensable.[7]

This creates difficulties for employers trying to determine whether an injury at home is compensable. When an employee is working on the employer's premises, an employer can monitor an employee's activities. However, when an employee is working at home, it becomes difficult, if not impossible, for the employer to determine when the injury was sustained, or what the employee was doing at the time of injury. In order to comply with the complex and strict wage and hour laws in California, some employers are using computer access to clock people in and out.

A lot will depend upon the employee's own reporting. Of course, a certain degree of trust is necessary for employers to allow an employee to work from home. Employers may need to trust their employees if they claim they were injured at home, and employees must be careful not to lose that trust.

GOING TO AND FROM WORK

Many employees are being compelled to work at home because of the coronavirus. Such employees may need to return to the workplace for a variety of reasons. They may need to retrieve documents or materials to bring back home. Or the employee may be able to perform most of the job functions at home, but certain job functions that can only be performed at the workplace.

The going and coming rule generally bars injuries traveling to and from work. However, an employee who is required to work from home may be able to claim injuries while traveling to and from work.

Very early on, the California Supreme Court explained that an employee going to and from the place of employment is not rendering any service. Instead, the employee only begins to render service when he or she arrives at the place of employment.[8]

Nevertheless, the courts soon realized that the going and coming rule did not universally apply.[9] The courts recognized the tension between the employer's desire to be immune from liability for an employee's injury or death that occurs in the everyday transit from home to office or plant; and the employee's desire to be protected from loss by injury or death that occurs in the non-routine transit.[10]

Accordingly, while the going and coming rule remains the law in California, it is subject to numerous exceptions, and neither the rule nore the exceptions are subject to automatic application. Each case must be judge on its own facts.[11] The going and coming rule and its exceptions are discussed in Sullivan on Comp Chapter 5.

One of the exceptions is when the employee's home functions as a second jobsite (see Sullivan on Comp Section 5.50). When the employer requires work to be performed in the employee's home, injuries during a commute to and from the regular work premises are not barred by the going and coming rule. The employee’s home becomes a second jobsite, and the employee is traveling between two work sites during his or her commute.

For example, in Bramall v. Workers' Comp. Appeals Bd.,[12] the Court of Appeal held that a legal secretary's injury in a car accident while driving home from work was not barred by the going and coming rule. The court explained, "Where the home is claimed as a second jobsite, the 'circumstances of the employment -- and not mere dictates of convenience to the employee"' must have required the work to be done at home."[13] It added that the regularity of work performed at home is an important factor to consider in determining whether the home is a second worksite.[14]

In Bramall, the legal secretary was carrying two depositions in Spanish that she was taking home to translate into English. The court found the record established not only a requirement to labor beyond normal working hours but an implied requirement to work at home. It concluded the translation work at home was the normal practice approved by the employer, and therefore the employee's injury was compensable.[15]

Subsequently, in Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (Smythe),[16] the California Supreme Court held that unless the employer requires the employee to labor at home as a condition of the employment, the fact that an employee regularly works there does not transform the home into a second jobsite for purposes of the going and coming rule. In that case, a college instructor was killed while driving his car home from work. The Supreme Court found the evidence established the employee worked at home by choice, not because of the dictates of the employer. Therefore, it concluded the claim was barred by the going and coming rule.[17]

And so the distinction is one of whether working from home is asked of the employee by the employer. In the present environment, many employees are being sent home to work by their employer. These employees who are required to work from home as a result of the coronavirus will likely fall under Bramall, instead of Smythe. Even if the requirement to work from home is only temporary, it will be difficult for employers to argue that the home is not a second jobsite.



  1. ↑ Fireman’s Fund Indem. Co. v. Industrial Acci. Com. (Elliott) (1952) 39 Cal.2d 529, 532-533.
  2. ↑ California Casualty Indem. Exchange v. Industrial Acci. Com. (Cooper) (1943) 21 Cal.2d 751, 758; Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 568.
  3. ↑ Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 568.
  4. ↑ Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 568.
  5. ↑ Wilson v. WCAB, (1976) 41 CCC 76.
  6. ↑ Santa Clara Valley Transport. Authority v. WCAB (Tidwell) (2017) 82 Cal.Comp.Cases 1514 (writ denied).
  7. ↑ Santa Clara Valley Transport. Authority v. WCAB (Tidwell) (2017) 82 Cal.Comp.Cases 1514, 1515-1517 (writ denied).
  8. ↑ Ocean Acci. & Guarantee Co. v. Industrial Acci. Com. (1916) 173 Cal. 313, 322.
  9. ↑ Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 154.
  10. ↑ Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 156-157.
  11. ↑ Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 565.
  12. ↑ (1978) 78 Cal.App.3d 151.
  13. ↑ Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 158.
  14. ↑ Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 159.
  15. ↑ Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 159.
  16. ↑ (1985) 40 Cal.3d 345.
  17. ↑ Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (Smythe) (1985) 40 Cal.3d 345, 357.


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