Workers’ Comp and Working at Home
7.10.2020
The effect of the COVID-19 pandemic on the United States and the world has been enormous and historic. The economic impact on the world has been extraordinary. Following the World Health Organization’s declaration on March 11, 2020 that COVID-19 was a global pandemic, by March 31, 2020, more than one-third of humanity was under some form of lockdown, and by April 7, 2020, roughly 95% of all Americans were under lockdown with 42 states declaring stay-at-home orders.[i]
While the unemployment rate has soared to levels paralleling those of the Great Depression[ii] millions more Americans who have been able to retain their jobs have been asked or directed by their employers to work remotely from home. In New York, all businesses and not-for-profit entities throughout the state, other than those providing essential business and services, were ordered to reduce the in-person workforce at any work location by 100% on March 22, 2020.[iii] That included the Workers’ Compensation Board (the Board), which closed all of its locations statewide and conducted all hearings remotely[iv] using its Virtual Hearings Service with some Workers’ Compensation Law Judges (WCLJs) conducting those virtual hearings from their own homes.
Even as American society slowly eyes a reopening, however, some of these changes may be here to stay, and working from home may become much more of the norm than it was prior to the worldwide spread of the COVID-19 virus.[v] With the workplace now encompassing the home offices and dining rooms of millions of Americans, the potential for accidents and illnesses in workers’ homes must be considered on a scale that previously did not exist.
In New York, the Workers’ Compensation Law (WCL) provides protections for both workers and employers when work-related injuries and illnesses occur. It is a fundamental principle of the WCL that coverage for workers and liability of employers is based upon injuries and illnesses that arise out of and in the course of employment.[vi] Although injuries sustained in accidents outside the workplace are generally not compensable, injuries from at-home work may qualify when the employee engages in a specific work assignment for the employer’s benefit or so regular a pattern of work at home that the home achieves the status of the place of employment.[vii]
A “home office exception” has evolved to allow recovery under the WCL for work-related injuries that occur at home, although the scope of coverage for injuries to employees working from home has often been limited in recognition of the distinctive nature of the at-home work environment, and the “home office exception” has been applied cautiously by the Board and the courts.[viii]
Previously, where work from home was the exception for many employees rather than the rule, the burden has been on the employee to demonstrate that an at-home injury was work-related. But has the dynamic changed in the current environment where employees are being directed by their employer or by government order to work from home? Should a WCLJ who is himself or herself working from home decide a claim for an at-home work injury brought by an injured worker? When an Executive Order of the Governor compels businesses to have their employees work from home, should the burden of proving a compensable injury that occurs at the employee’s home be lessened? And what protects an employer from liability for injury to its workers in the home environment where personal and employment-related tasks and activities intersect and overlap? Case law decided in the pre-COVID-19 world provides a starting point for the analysis of some of these questions, but as more injuries occur to an at-home workforce, the possibility exists for a change in the way these cases are decided.
The “Home Office Exception” Develops
In Hille v. Gerald Records, 23 N.Y.2d 135 (1968), the New York Court of Appeals addressed the issue of whether a fatal automobile accident sustained while an employee was on his way home from work arose out of and in the course of his employment. The decedent, Gerald Hille, was a record company executive on his way home to his residence in New Jersey after working late into the evening at the studio’s offices in Manhattan. Hille had recording tapes with him at the time of his accident, and in his home he had recording equipment belonging to his employer that he frequently used in connection with his job. The evidence demonstrated that it was a common practice for Hille to take tapes home to listen to them and to return to the studio thereafter for editing.
The Board determined in Hille that the accident was compensable, finding that Hille was in the course of his employment while traveling home at the time of the accident. The Appellate Division disagreed and dismissed the claim. But on review, the Court of Appeals reversed the Appellate Division, determining that under the circumstances, Hille’s home had become an extension of the employment premises such that the accident occurring between his work location and home was compensable.
The Court of Appeals, in extending the “mixed” or “dual-purpose” trip doctrine first set forth by the Court in Marks v. Gray, 251 N.Y. 90 (1929), stated that where there is a specific work assignment for the employer’s benefit at the end of the particular homeward-bound trip or so regular a pattern of work at home that the home achieves the status of a place of employment, the Board may permissibly find that a worker’s home has become “a place of employment.” Relevant considerations include the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.[ix]
Noting that the evidence in Hille demonstrated that he regularly took tapes home and worked on them, sometimes by himself and sometimes with another employee; he had work equipment at his home that was owned by the employer; and it was necessary and beneficial to his employer for him to perform duties at home, the Court found that the “mixed” or “dual” purpose doctrine was satisfied. Of significance, the Court of Appeals noted that the test must be applied with caution to professional employees who have frequent occasion to carry work home of varying degrees of importance and substantiality, and warned that the “rule is not to be subjected to ‘a process of gradual erosion, through the device of finding some tidbit of work performed at home.’”
Application and Limitation of the Hille “Home Office Exception”
Following Hille, a series of decisions of the Appellate Division have applied Hille to find injuries compensable that occurred either at the employee’s home or while traveling to home.
In Levi v. Interstate Photo Supply Corp., 46 A.D.2d 951 (1974), the claimant’s decedent often worked at home with the employer’s knowledge and approval. On the day of his fatal work accident his supervisor had instructed him that, following a meeting out of the office, if the decedent decided not to return to the office to call his supervisor and to do additional work when he got home. Decedent’s body was found partially in the elevator on the second floor of his apartment building with gunshot wounds to the head. His briefcase containing work-related papers had been rifled through. While the referee had disallowed the claim, the Board reversed and found that the death arose out of and in the course of his employment. The Appellate Division affirmed, finding that the decedent’s home had achieved the status of a place of employment and, in journeying there at the conclusion of his business meeting to continue working until the end of the day, decedent was in the course of his employment.
In Weimer v. Wei-Munch, Ltd., the claimant operated a restaurant business and maintained an office for the corporation in his home where all of the paper and telephone work of the business was regularly conducted. He was employed by the corporation as the restaurant’s manager and chef. All business mail was received there, and there were business records, files and an adding machine. Payrolls, merchandise ordering, preparation of menus, employee scheduling and business meetings were conducted at that office. He sustained injuries in a motor vehicle accident while traveling from the restaurant to his home. In affirming the Board’s finding that the injuries were compensable, and citing Hille, the court noted that if “work duties associated with the employee’s home are such that it can genuinely be said that the home has become part of the employment premises,” an accident occurring between work and home is compensable.
The Court of Appeals had an opportunity to visit the issue again in Fine v. S.M.C. Microsystems Corp., 75 N.Y.2d 912 (1990), and affirmed its commitment to the principle it had announced in Hille. The claimant decedent in Fine had a heart attack while driving from his regular employment place to his home where he intended to complete his work. He had set up a separate work area in his home and sometimes worked at home on weekends to complete assignments in a timely fashion. His supervisor testified that the work done by decedent at home inured to the benefit of the employer and that he had permitted the employee to work at home in the past. The Appellate Division had reversed the Board’s finding that the death was compensable, but the Court of Appeals reversed the Appellate Division, noting the well-settled rule of Hille, stating that an employee’s home can achieve the status of place of employment when the employee performs either a specific work assignment for the employer’s benefit or a regular pattern of work at home exists.[x]
The “home office exception” has not been applied without limitation. In Bobinis v. State Ins. Fund, 235 A.D.2d 955 (1997), the claimant was struck by a car in a parking lot when he stopped to purchase a pen that he needed for his next day’s work. He reported to his office only one day a week and otherwise was responsible for attending hearings before the Board to represent the State Insurance Fund. He claimed that his accident while on the way home was compensable, but the Appellate Division affirmed the Board’s disallowance of the claim.
The Appellate Division noted in Bobinis that the home office exception arises where it is shown that an employee’s home has become part of the employer premises. However, the court observed, as it is commonplace for many professionals and managerial-level employees to take work home, the exception is applied cautiously and generally only after consideration of the following indicia: the quantity and regularity of the work performed at home, the continuing presence of work equipment at home, and the special circumstances of the particular employment that made it necessary and not merely personally convenient to work at home. In finding his accident not compensable, the court noted that although the claimant in Bobinis frequently took work at home, there was no proof that he maintained an office or that he had work equipment in his home. Further, his supervisor testified that he encouraged his employees to perform their work, other than hearings before the Board, in the office as much as possible. Based on this record, the court found no basis to disturb the Board’s finding that the claimant’s home was not a second employment site.
Similarly, the Appellate Division, in Kirchgaessner v. Alliance Capital Mgt. Corp., 39 A.D.3d 1096 (2007) affirmed the Board’s finding that the claimant’s decedent’s death did not arise out of and in the course of her employment. Notwithstanding the presence of work equipment in the home which enabled decedent to work from home during irregular business hours, testimony demonstrated that work at home only constituted about 5% to 10% of decedent’s overall workload, and that decedent worked at home just three days per month. The employer’s preference was for employees to come into the office. While the decedent had worked at home the day prior to her death, the evidence suggested that she did so for personal reasons. The Appellate Division found that the Board had properly disallowed the compensability of the death claim. The court again noted that the factors to be considered in determining whether an employee’s home has achieved the status of an additional place of employment include factors such as the presence of work equipment in the home, the regularity and quantity of the work performed there, as well as the special circumstances of the particular employment that make it necessary, as opposed to personally convenient, for an employee to work at home.
Recent Board decisions reflect that, consistent with Bobinis, the home office exception has indeed been applied cautiously. In IBM Corporation, 2015 N.Y. Wrk Comp LEXIS 6682, the Board disallowed the claim when the claimant was injured at his home when he slipped and fell on ice. The claimant had a home office above his garage, and while walking from the office into his home to get a cup of tea, he slipped and fell and fractured his ankle. Just prior to his fall, he had been using a work computer that had been purchased by the employer and was commonly brought home by the claimant. His employer had also purchased a monitor and docking station for his home office. The employer, however, did not help him set up his home office nor did it pay for anything in his home. The testimony indicated that employees were expected to work at the employer’s work location but that it was common practice for employees to work from home in the evenings. While the supervisor testified that the claimant’s work from home was for both the employer’s convenience as well as the employee’s, it was mostly for the employee’s convenience. In disallowing the claim, the Board found that the claimant did not perform his work at home on a regular basis and did so approximately once per month and at the claimant’s convenience in order to perform a special errand. Outside of that once-a-month exception the claimant was working from the employer’s office location on a daily basis. The employer did not provide substantial equipment for the establishment of the home office and the creation of a home office was never explicitly promoted or paid for by the employer.
The Board similarly denied the compensability of claims in Aftercare Nursing Services, Inc. 2019 N.Y. Wrk Comp LEXIS 9653 and Matrix Absence Management, 2019 N.Y. Wrk Comp LEXIS 4888.
In Aftercare Nursing, the claimant’s work schedule changed on a weekly basis, and she was typically required to report to the employer’s premises and was allowed to work from home on a daily basis as well. On the date of her injury, while “working on a call” on a work-related matter, she was also interacting with her daughter preparing dinner. A can dropped on her foot and caused fractures of several toes. Noting that the can had nothing to do with her job duties, that there was no evidence that the phone call that the claimant was involved in had to be handled on an urgent basis, and that there is no evidence that the claimant used office space and equipment at home on a regular basis, the Board found her injury to not be compensable.
In Matrix Absence, the claimant was injured while installing furniture in his home office. He was hired by the employer as a telecommuter to work from home, but his employer had not provided the furniture or paid for it. The employer had provided the claimant with a computer tower, two monitors and a keyboard, but the claimant ordered the furniture and paid for it himself. He was injured during his work hours while assembling the furniture. In denying the compensability of his injury, the Board noted that when an employee works from home, the distinction between what is work-related and what is personal is not always as apparent as when an employee works at the employer’s premises. Noting that more people are regularly working from home today than ever before, the legal standards developed to address whether an injury occurring in a traditional employer-controlled workspace is compensable cannot always be reasonably applied to injuries to employees working from home.
In denying the compensability of the claimant’s injuries in Matrix Absence, the Board stated that the scope of compensable injuries to employees working from home should be limited in recognition of the distinctive nature of their work environment. Employees who work from home, outside the direct physical control of their employers, are potentially able to alternate between work-related and personal activities when they choose. For this reason, injuries sustained by employees working from home should only be found to be compensable when they occur during the employee’s regular work hours and while the employee is actually performing her employment duties. Injuries which occur while a claimant is not actively performing his or her work duties, such as taking a short break, getting something to eat, exercising or using the bathroom, for example, should be found to have arisen from “purely personal activities [that] are outside the scope of employment and not compensable (citing Matter of McFarland v. Lindy’s Taxi, Inc., 49 A.D.3d 1111 [2008]).” Because the claimant’s injuries did not occur while he was performing his duties as a claims adjuster and occurred while he was moving furniture during his lunch break, the Board found that the activities that claimant was engaged in were not sufficiently work-related to render his injuries compensable.
For those employees who do truly work full time from home, minor deviations from employment in the home office will not necessarily result in an injury being found not compensable. In Wellpoint, Inc., 2014 N.Y. Wrk Comp LEXIS 11971, the claimant worked from home as a customer service representative. On the date of her accident she had put food in her oven, and when the timer went off she stood up from her desk to remove it and was injured when she fell over a bag on the floor. In finding her injury compensable, the Board found that to the extent that her actions amounted to a deviation from her employment in her home workplace, it was a momentary deviation that was reasonable and of a short duration. The Board found that her actions were not disqualifying under the circumstances, that her employment had not been interrupted at the time of her accident, and that her injuries arose out of and in the course of her employment.
Work From Home After COVID-19
In the context of the COVID-19 pandemic, employers throughout New York State were required to act in haste to have their workforce moved from office locations to home environments. Some employees may perform that work solely with an employer-issued laptop, some may connect to their employer’s servers using a personally owned computer, while others may have a fully equipped office in their home. Many are conducting their work from home while also keeping an eye on their school-age children in the next room doing remote learning.
While the cases discussed herein have shown that the presence of work equipment at the home has been a significant factor, how much of that equipment will be required going forward? Is a laptop enough? Is the compensability of an injury sustained at home limited to accidents occurring during normal work hours (i.e., between 9 a.m. and 5 p.m.)? Is a designated “home office” location within the home to be required? How should an injury during a coffee or meal break be handled? The home environment offers opportunity throughout the day for deviations from the employment-related tasks at hand. What types of deviations will be tolerated as de minimis and which will cause a legal separation from the course and scope of employment? Cases presenting these very questions will soon be working their way through the Board and the courts.
Conclusion
The “home office exception” first set forth in Hille is now over 50 years old. While it is established in the New York Workers’ Compensation Law that injuries which occur at home may be deemed work-related and compensable, Appellate Division decisions and recent decisions of the Board demonstrate that the facts and circumstances of such claims will be carefully scrutinized. In recognition of the work-related and personal tasks that can take place in someone’s home, the issue of whether an injury arises while the employee is actually performing work-related duties at the time that an injury occurs will turn frequently on the facts and circumstances involved.
With millions of Americans now working from home, and the prospect that remote work will become the norm rather than the exception, the compensability of injuries that occur at an employee’s home promises to occupy the attention of legal representatives of both injured workers and their employers. As this discussion demonstrates, whether the worker will be entitled to workers’ compensation benefits for those injuries will require a thorough understanding of the facts and circumstances surrounding the nature and extent of the work performed at home.
[i] Holly Secon, Aylin Woodward and Dave Mosher, A Comprehensive Timeline Of The New Coronavirus Pandemic, From China’s First Covid-19 Case To The Present, Business Insider, June 30, 2020,
https://www.businessinsider.com/coronavirus-pandemic-timeline-history-major-events-2020-3
[ii] Heather Long and Andrew Van Dam, U.S. Unemployment Rate Soars To 14.7 Percent, The Worst Since The Depression Era, Wash. Post, May 8, 2020, https://www.washingtonpost.com/business/2020/05/08/april-2020-jobs-report/.
[iii]Executive Order 202.8, Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency, March 20, 2020,
https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
[iv] COVID-19: Workers’ Comp Hearings Now Remote, Board Offices Closed to the Public, N.Y. Workers’ Compensation Board, March 16, 2020,
http://www.wcb.ny.gov/content/main/TheBoard/COVID-19-Board-Stakeholders-3-16.jsp.
[v] Jack Kelly, The Massive Work-From-Home COVID-19 Test Was a Great Success and Will Be The New Norm, Forbes, May 11, 2020,
https://www.forbes.com/sites/jackkelly/2020/05/11/the-massive-work-from-home-covid-19-test-was-a-great-success-and-will-be-the-new-norm/#5892d914e743.
[vi] Malacarne v. City of Yonkers Parking Auth., 41 N.Y.2d 189, 193 (1976).
[vii] Fine v. S.M.C. Microsystems Corp., 75 N.Y.2d 912 (1990).
[viii] See, e.g., Bobinis v. State Ins. Fund, 235 AD2d 955 (1997); Kirchgaessner v. Alliance Capital Mgt. Corp., 39 A.D.3d 1096 (2007).
[ix] Citing 1 Larsen, Workmen’s Compensation Law [1966], §18.32
[x] See also Claim of McRae v. Eagan Real Estate, 170 A.D.2d 900 (1991); Shanbaum v. Alliance Consulting Group, 26 A.D.3d 587 (2006).
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