Earlier this week, NPR aired a report entitled “Get a comfortable chair: Permanent work from home is coming.” The reporter and her guests discussed the cost savings for businesses and the less stressful environment for at home workers. NPR also had on hand a psychologist to discuss the potential downsides of stay-at-home work, including sense of isolation from colleagues and the business environment. The story confirmed that “work from home” is becoming a very popular option for workers and employers, a trend that has only been accelerated by the impact of COVID-19.
Hearing this news report, I began to think: How would I defend a workers’ comp injury that occurred in someone’s home? Recall the Nicholson vs. DSS case from a few years ago. Ms. Nicholson tripped while walking down a carpeted hallway in the Greenville County DSS office while carrying files. The South Carolina Supreme Court held that because her fall “happened at work and was not caused by a condition peculiar to her, it was causally connected to her employment.” This was perhaps a stretch, but at least Ms. Nicholson was “at work.” How do we determine what injuries “arises out of and in the course of employment” when the workplace and the home are one in the same?
For example, I am at home working. While dictating, I notice that my birdfeeder is empty and I walk outside to refill it—pondering my next sentence every step of the way. On the way back to my “office,” I slip on my outside stairs and break my ankle. Could this compensable? If I were at work in my office and injured myself during a smoke break that could be compensable under the personal comfort doctrine. Is feeding my birdies somehow incident to my work if my focus is shattered by watching tweety look in vain for food? Is that sense of compassion similar to the nicotine withdrawal symptoms that send some workers outside in the 95-degree heat for a smoke? Would it make a difference if my employer encouraged or required me to work from home? Would it matter if I were on the pone with a client while re-filling my birdfeeder? What if I say to my client, “gee, my birdfeeder is empty, and she says to me “ROBERT. FILL. THAT. BIRDFEEDER!” Would keeping my client happy with birdseed make this injury compensable?
Consider at-home workers with small children. I am at my desk (dining room table) preparing a pre-hearing brief for a demanding client, when my 1-year-old falls off the couch onto the hardwood floor. She screams her head off; I run over, pick her screaming, wiggling body up off the floor and herniate a disk in my lower back. Is this injury compensable? Does an employer blur the lines between home and office, between personal and work when they encourage or require workers to work from home for the sake of cost saving to such an extent that household tasks become incident to employment? There is one other question too. How the hell will we know? I hate to sound cynical, but if we thought claimants lied before, let’s see what they are capable of when there are no surveillance cameras, no witnesses (except for the birdies and the 1-year-old) and no supervision? A toddler weighs about as much as a bankers’ box full of paper!
If you think this all sounds crazy, consider North Carolina’s dual purpose rule: “[t]he rule applicable when an employee has been directed as part of his duties, to remain in a particular place or locality until directed other otherwise or for a specific length of time has been well stated . . .: [i]n those circumstances, the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.” Watkins vs. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577, 581 (N.C. 1976). I don’t believe our courts here in South Carolina have articulated the rule quite that broadly. However, I wouldn’t be surprised if our courts and Commission rely on similar analysis as working from home becomes more prevalent going forward.
Working from home is here to stay for many businesses and employees. Workers like it, and businesses that have heretofore relied on large offices with multiple cubicles have determined that they can save a lot of money if they occupy smaller office spaces that are less expensive to rent, heat, cool and maintain. This trend has only increased with the effects of COVID-19. Therefore, employers and defense lawyers will soon face the questions raised above. Please respond to let us know your thoughts, and share any experience you may have had with “work from home” injuries.