New social distancing norms and efforts to limit the number of people in workplaces as a result of COVID-19 has resulted in a major increase of employees working from home. How does NYS workers’ compensation cover telecommuters?
In compliance with the general law, injuries sustained at home or in remote work places must arise out of and in the course of employment. Injuries that occur from purely personal activities and are unrelated to work duties are not compensable. When an employee works at home, work-related activities and purely personal activities are more likely to overlap. A home office must be established and employees have a greater chance of a successful claim if they prove they were injured during their regular work hours while performing their actual work duties. However, momentary deviations, or short breaks, must also be addressed.
The Home Office Exception
A claimant must satisfy these three criteria to establish a home office: 1) quantity and regularity of work performed at home, 2) continuing presence of work equipment at home, and 3) circumstances that are necessary and not merely personally convenient for an employee to work at home. It must be approved by and beneficial for the employer for the employee to work at home. Bobinis v. State Ins. Fund, 235 A.D.2d 955 (1997). When an injured claimant establishes all three, their injuries may be compensable. For example, in Hille v. Gerald Records, 23 N.Y.2d 135 (1968), the claimant regularly worked from home because of the irregularity of his work hours, had various work equipment at home, and it was beneficial and necessary for him to work at home. Therefore, his injuries were compensable.
Momentary Deviations
Momentary deviations, breaks for a customary and accepted purpose like bathroom or coffee breaks, do not bar a claim for benefits. Because these short breaks are closely related to job performance, they do not constitute an interruption of employment. At workplaces, many deviations are acceptable so long as they do not violate an employer’s order nor are of a purely personal nature. In home offices, momentary deviations are heavily scrutinized because purely personal activities can happen much more frequently. A recent case decided by the Workers’ Compensation Board ruled that injuries that occur while an employee is not actively performing work duties, like using the bathroom or getting something to eat, should be found to have arisen from purely personal activities and thus outside the scope of employment. Matrix Absence Management, 2019 NY Wrk. Comp. 1953353. Here, the Board made a distinction that activities that were previously considered acceptable momentary deviations were no longer compensable. Going forward, we anticipate more of these cases arising, and if momentary deviations at home are found to not be compensable, telecommuters will have an even more difficult time securing workers’ compensation benefits.
NYS has not yet provided guidance on how COVID-19 will impact telecommuting for the purposes of workers compensation. Multiple questions are currently unaddressed, including, but not limited to, what deviations will be accepted? Will the criteria for a home office change? Is a home office established if an employee is sick/quarantined but can work from home for a period of just two weeks?
Written by intern Dana Chan. This summer internship was part of the ILR Summer Credit Internship Program with Cornell University. Interns conduct research and engage in other tasks for their employer and coordinate with their intern supervisor to develop and write a research paper analyzing their internship work.
