Workers’ Comp Benefits Off the Work Site: Work At Home, Travel

This post is the first of (hopefully) many you’ll be seeing on our blog by guest writer Tom Domer of Wisconsin. In this post, Tom notes that over 18-million people work from home today. He smartly questions the traditional criteria for whether work done from home can be applied to a workers’ compensation claim. 

We are living in a digital age.

After all, we’re living in a digital age. Increased use of things like cell phones and laptops challenges standard ideas of what a work-related injury is. 

A whole host of “Course of Employment” issues accompanies the increased prevalence of work done at home, enhanced significantly by computer technology. Many employees contract with their employers to work frequently or exclusively from their homes. Does an accident in the employee’s kitchen or bathroom fit into the course of employment under the “Personal Comfort” doctrine that routinely applies to employer premises?  The Court’s time-honored criteria for whether work performed at home is considered to be in the course of employment may require alteration for “telecommuters” in the post-computer era.  The traditional criteria, the quantity and regularity of work performed at home, the continuing presence of work equipment in home, and the special circumstances of the particular employment that make it necessary and not merely convenient to work at home may be altered by employees increasingly using mobile devices.

The 2011 Risk and Insurance Management Society met in Vancouver recently and experts advised employers that increased use of mobile devices challenge traditional notions of work-related injuries.  Assume a driver of a car with a laptop opened on the passenger seat, GPS on the dashboard, using a Smartphone with earplugs.  In the event of an accident, is a worker’s compensation claim compensable, whether or not she was on her way to the office or doing something purely personal?  While driving presents some of the most serious exposures, over 18 million people currently work from home, with the number expected to double in a few years.  Even when employees are not in the office, they may be checking e-mail while on vacation or when home due to sickness or at some personal occasion.  Management condoning such use of technology may trigger liability.

Many work-at-home cases are likely to be contested because they are so fact-dependent.  In a recent case, the Commission awarded benefits for a nurse, completing paperwork at home in order to care for a sick child, who was injured walking from her car to her house to retrieve more paperwork.  She had asked for the day off, but her employer insisted she visit some clients to do paperwork at home.  As the dissenting Commissioner in that case mused “If a ceiling fixture fell on the applicant while she was doing paperwork at home, would that be a hazard of employment compensable under worker’s compensation?”

With over 30 years of experience representing injured workers in Wisconsin, Tom Domer was recently named the 2011 Milwaukee Workers’ Compensation Lawyer of the Year in Best Lawyers. Tom teaches the worker’s compensation course at Marquette University Law School, providing the instruction and training for many other lawyers. He lectures frequently around the nation. He also is a prolific writer, editing the national magazine Workers’ First Watch. He has co-authored over two dozen texts, including with his son and law partner Charlie, West’s Wisconsin Workers’ Compensation Law. Tom earned all his degrees in Wisconsin.

 

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