BY SHAWNA G. FRUIN AND FLYNN P. BURKE
When COVID-19 emerged as a public health crisis, it became imperative to shift an unprecedented portion of the global workforce to remote employment. This abrupt sea change, in addition to countless other upheavals to daily life, left employers scrambling to keep businesses afloat. Many all at once needed to provide digital devices, secure access to applications, increased bandwidth, and more. Many more were forced to reimagine employee functions on the fly. The number of workers affected by that shift is staggering; according to Forbes, around 5 percent of employees worked remotely before the pandemic; that figure is now at least 20 percent of the greater workforce, and is reasonably expected to increase over time.11 Levanon, Gad. “Remote Work: The Biggest Legacy of Covid-19.” Forbes Magazine, 23 Nov. 2020, www.forbes.com/sites/gadlevanon/2020/11/23/remote-work-the-biggest-legacy-of-covid-19/?sh=78e5e6067f59.
As employers rose to the challenge of accommodating remote work, telecommuting policies followed—contracts were drawn between employer and employee, outlining guidelines, standards, and expectations for working beyond the confines of centralized space. Common sense suggests such policies are a sensible step to ward off conflict and establish norms and customs to address unfamiliar issues, such as identifying which employees are eligible to work from home, time reporting requirements, overtime hours, breaks, health and safety, technology agreements, supplies, tech support, and security concerns. Experience shows those policies are all too frequently silent on a key concern: The risk of liability for employee injuries or illnesses occurring in their remote workspaces.
Under the Industrial Insurance Act, employers are responsible for injuries or illnesses that occur “in the course of employment.”22 RCW 51.32.010. Yet it is not easy to spell out where or when an employee is acting “in the course of employment,” especially when comparing remote workers to those who perform their duties in an office or at a jobsite. If an employer implements a telecommuting policy that fails to take heed of workers’ compensation principles, the employer is doing so at the risk of inadvertently increasing the circumstances in which it could be held responsible for an industrial injury or illness claim.
Even a well-intentioned approach to remote work might nonetheless increase the employer’s risk of liability for employee injuries or illnesses.
WHAT IS ‘THE COURSE OF EMPLOYMENT’?
“Acting in the course of employment” means that the employee is acting at the employer’s direction or in the furtherance of the employer’s business.33 RCW 51.08.013. This definition—somewhat unique to Washington as compared to other states—can encompass endeavors that fall well outside the performance of normal or anticipated employment duties. For example, injuries that occur while attending to most personal comforts—noshing a snack, stepping out for a smoke—are firmly within the “course of employment” under prevailing case law, even though not strictly at the employer’s direction or to its benefit.44 See e.g., In re Janise Dial, BIIA Dec., 01 17217 (2003) (injury during a smoke break is within the course of employment); In re Philip Carstens, Jr., BIIA Dec., 89 0723 (1990) (injury eating candy from a receptionist’s desk is in the course of employment); Knight v. Dep’t of Lab. & Indus., 181 Wn. App. 788, 798, 321 P.3d 1275, 1280 (2014) (drinking alcohol in moderation “may be considered a personal comfort,” but drinking to the point of intoxication is outside of the scope of employment). By contrast, Washington law draws a line at the employer’s parking lot, where injuries are not compensable despite presumably occurring in the course of furthering employment—i.e., showing up for work.55 RCW 51.08.013(1). Outside of a few settled circumstances, whether an employee is “acting in the course of employment” is at its core a question of fact, and case law exemplifies how reasonable minds can differ about what exactly fits the bill.
It would be fortuitous (and this article would be shorter) if the law specifically defined a remote worker’s “course of employment”; however, there is no precise regulation or statute on the matter, and past court and administrative decisions provide similarly slender instruction. That said, a handful of examples show how even well-intentioned employer policies may unintentionally create liability for workers’ compensation claims.
In Department of Labor and Industries v. Johnson, Charles Johnson was sent home from work for disciplinary reasons and told not to perform his usual work functions.66 Dep’t of Labor & Indus. v. Johnson, 84 Wn. App. 275, 928 P.2d 1138, 1139 (1996). Then, during typical work hours, Johnson severed three of his fingers using a power saw for a personal project. Johnson pursued a workers’ compensation claim, contending that he was following the employer’s directive—staying at home, and not performing his usual work functions—so, in his view, the injury occurred in “the course of employment.” The employer countered that it never told Johnson to engage in personal projects, much less with power tools, and noted that such projects did not further the employer’s business. The claim was variously allowed and denied at different stages, but ultimately the Washington Court of Appeals weighed in, concluding that Johnson was not “acting in the course of employment” at the time of injury because the personal project was neither required by the employment contract nor specifically performed at the employer’s direction.
Tip: This fact pattern shows that decision-makers will focus narrowly on the worker’s specific activities when deciding if an injury is “in the course of employment.”
In re: Christine Haywood is a case that made its way through administrative hearings at the Board of Industrial Insurance Appeals.77 In re: Christine Haywood, No. 07 14465 (Wash. Bd. Ind. Ins. App. Sept. 3, 2008), 2008 WL 5663971. Haywood regularly worked at home on Fridays, and occasionally in the mornings on other days before traveling to an office. On a Monday morning, Haywood worked for about 30 minutes at home (at her discretion) to prepare for a meeting at the office, then took her materials from home, drove to the office, and slipped and fell in the employer’s parking lot. Haywood pursued a workers’ compensation claim, contending that remote workers should be deemed “acting in the course of employment” in the same manner as traveling employees—that is, with nearly continuous coverage. But in a non-significant decision (meaning the Board did not find that the decision was of substantial importance88 WAC 296-12-195.), the Board disagreed. It concluded that telecommuting employees are not akin to “traveling” employees under the law, as traveling employees often have greater risks in the course of travel and less control over their location, destination, and/or activities. The Board also noted that Haywood’s remote worksite was probably limited to her home desk and telephone.
Tip: This fact pattern shows that a remote worker’s jobsite probably enjoys less than continuous coverage, and that the parking lot exception can still apply to a remote worker’s claim.
In re: Leeann Starovasnik is another case that made its way through administrative hearings, before reaching the Superior Court.99 In re Leeann Starovasnik, No. 16 19483 (Wash. Bd. Ind. Ins. App. June 28, 2018), 2018 WL 3413576. Starovasnikexclusivelyworked from home, handling client calls over the phone. The employer allowed her to take breaks if she logged off her work computer and made clear that she was unavailable. The employer’s training manuals also encouraged healthful activities during breaks, such as walking, stretching, and taking trips around the block for exercise. On one such trip around the block while walking her dog, Starovasnik was injured. She pursued a workers’ compensation claim, contending that she was “acting in the course of employment” and attending to her personal comfort. The employer countered that her walk was a significant deviation from her duties. The Board agreed with the employer, finding Starovasnikwas not “acting in the course of employment.” But a superior court judge disagreed, allowing the claim because “[Starovasnik] was near her home office at the time of the fall and was performing an activity that was reasonable and encouraged by her employer.”1010 Jones, Jesse. “Who Pays When You’re Injured Working from Home.” KIRO 7 News Seattle, 23 Feb. 2021, www.kiro7.com/news/jesse-jones/who-pays-when-youre-injured-working-home/6VEM7R2JTFESVDISIAIYP7XZQI/.
Tip: This fact pattern shows that encouraging specific break-time activities in a telecommuting policy may bring those activities into the course of employment. Hence, a well-intentioned policy that encourages personal comforts and the like might inadvertently increase the chances that the employer is responsible for an associated injury or illness.
WHAT SHOULD YOU CHANGE IN YOUR TELECOMMUTING POLICY?
Each employer is different, and so each telecommuting policy should be tailored to fit the specific needs of that business. Moreover, as current Washington law does not provide a clear definition of a remote worker’s “course of employment,” there can be no universal template that heads off the prospect of dispute on the issue. However, there are some important considerations to keep in mind when crafting (or updating) a telecommuting policy to ensure that the policy does not inadvertently blur or—worse yet—outright increase the employer’s risk of liability.
First, consider clearly delineating your remote worker’s jobsite, as best as you can under the circumstances. For example, encourage employees to work from home, rather than from a coffee shop, library, or other public space; try to explicitly pinpoint the jobsite to the location (or within a reasonable distance) of their computer or telephone. While a “jobsite” is not the only conceivable location where an injury or illness could result in a compensable workers’ compensation claim, decision-makers at the Department of Labor and Industries and/or Board of Industrial Insurance Appeals can be expected to try to figure out what best fits the description in contested cases, so having a policy to reference could end up being helpful.
Each employer is different, and so each telecommuting policy should be tailored to fit the specific needs of that business.
Second, for periods when your remote employees are not expected to be working—e.g., meal breaks, after hours—less is more. Whereas Starovasnik’s employer was perhaps trying to encourage healthy habits among its employees, it appears doing so convinced at least one superior court judge that going for a walk, a block or more from her home, could fit Starovasnik’s “course of employment.” Hence, it might be best to omit any suggestion of how remote employees spend their time during a break.
Third, consider specifically delineating work hours, enforcing compliance, and documenting when your remote employee is on the clock. While it is possible that one could be deemed “in the course of employment” outside those hours, a clear bifurcation of what the employer considers work and non-work time should help decision-makers assess whether an incident is covered by workers’ compensation.
The facts of the cases described above highlight how well-intentioned telecommuting policies that lose sight of workers’ compensation principles might inadvertently expand an employer’s liabilities. Consider having a workers’ compensation attorney review your new or revised proposed telecommuting policy to help steer clear of unintended consequences and exposures.
NOTES
1. Levanon, Gad. “Remote Work: The Biggest Legacy of Covid-19.” Forbes Magazine, 23 Nov. 2020, www.forbes.com/sites/gadlevanon/2020/11/23/remote-work-the-biggest-legacy-of-covid-19/?sh=78e5e6067f59.
2. RCW 51.32.010.
3. RCW 51.08.013.
4. See e.g., In re Janise Dial, BIIA Dec., 01 17217 (2003) (injury during a smoke break is within the course of employment); In re Philip Carstens, Jr., BIIA Dec., 89 0723 (1990) (injury eating candy from a receptionist’s desk is in the course of employment); Knight v. Dep’t of Lab. & Indus., 181 Wn. App. 788, 798, 321 P.3d 1275, 1280 (2014) (drinking alcohol in moderation “may be considered a personal comfort,” but drinking to the point of intoxication is outside of the scope of employment).
5. RCW 51.08.013(1).
6. Dep’t of Labor & Indus. v. Johnson, 84 Wn. App. 275, 928 P.2d 1138, 1139 (1996).
7. In re: Christine Haywood, No. 07 14465 (Wash. Bd. Ind. Ins. App. Sept. 3, 2008), 2008 WL 5663971.
8. WAC 296-12-195.
9. In re Leeann Starovasnik, No. 16 19483 (Wash. Bd. Ind. Ins. App. June 28, 2018), 2018 WL 3413576.
10. Jones, Jesse. “Who Pays When You’re Injured Working from Home.” KIRO 7 News Seattle, 23 Feb. 2021, www.kiro7.com/news/jesse-jones/who-pays-when-youre-injured-working-home/6VEM7R2JTFESVDISIAIYP7XZQI/.