David B. Torrey

EXCERPT FROM CHAPTER FOUR

4:80. At-home Injuries Suffered by Telecommuters

By many accounts, the number of employees working at home, typically in home offices made practical by Internet connections, has increased significantly in the last few years.

For an excellent discussion, see Wait v. Travelers Indemnity Co. of Illinois, 240 S.W.3d 220 (S. Ct. Tennessee 2007). See generally Gabel & Mansfield, On the Increasing Presence of Remote Employees: An Analysis of the Internet's Impact on Employment Law as it Relates to Teleworkers, 2001 University of Illinois Journal of Legal Technology & Policy 233 (2001); Dutrow, Working at Home at Your Own Risk: Employer Liability for Teleworkers Under the Occupational Safety and Health Act of 1970, 18 Georgia State University Law Review 955 (2002).

It is, of course, well established that a fixed-situs employee who chooses to take work home, on a voluntary basis, is not considered in the course of employment. Accordingly, an injury suffered by such a worker during travel to and from the office while transporting such things as a file or work apparatus, and during the actual work at home, is usually not conceived of as “arising in the course of employment and related thereto.” See Little, Eaton & Smith, Cases and Materials on Workers' Compensation, at 197 (West 5th ed. 2004) (reviewing cases and noting that majority approach is to exclude such cases).

The worker, on the other hand, who labors on a part-time or full-time basis in a home office, is in a different category altogether. See Little, Eaton & Smith, Cases and Materials on Workers' Compensation, at 197 (West 5th ed. 2004) (“Injuries that employees suffer while actively working at an in-home business situs are compensable, but injuries caused by general premises risks are disputable.”).

The home office for this category of worker should be considered an extension of the employer's premises. (For a discussion of the meaning of “premises” under §301(c)(1) of the Act, 77 P.S. §411(1), see §4:71 et seq.).

It is submitted that, in general, the test of compensability should not be any different for telecommuters (or others working at home offices) than it is for employees who commute and have their workplace on-site. This is the position of a highly nuanced scholarly article on the issue. See Swink, Telecommuter Law: A New Frontier in Legal Liability, 38 American Business Law Journal 857 (2001).

The author's “summary of workers' compensation law to be applied by analogy to telecommuters” is highly persuasive. While the author is speaking of workers' compensation laws in general, Pennsylvania statutes and court precedents support this analysis:

"The current status of the law is as follows: If telecommuters are en route to pick up or drop off materials to their employers' worksite, the traveling employee exception will apply and injuries suffered either going to or coming home will be covered. If they are conducting personal errands during the same timeframe as dropping off or picking up materials, under the dual purpose doctrine, (meeting the business purpose requirements) any injuries suffered while on personal business will be covered….

[C]learly, if telecommuters are injured on the premises … (at home) while they eat/​rest/​take breaks, any injury suffered during the time period will be covered just as if the employee were performing such acts off the premises if such acts are reasonable, aid in the efficient performance or personal necessity or comfort of the employee, and are in some way, meaningfully limited, controlled or foreseeable by the employer. Such activities taken in “preparation of” or “incidental to” work activities are compensable as are injuries occurring during the actual performance of the employer's work."

Swink, Telecommuter Law: A New Frontier in Legal Liability, 38 American Business Law Journal 857 (2001). See also Duckworth, The Need for Workers' Compensation Law in the Age of Telecommuters, 5 Journal of Small & Emerging Business Law 403 (2001).

Both of these articles discuss at length the leading case, Ae Clevite, Inc. v. Labor Commission, 996 P.2d 1072 (Utah Ct.App.2000). In that case, the claimant was rendered quadriplegic when he slipped and fell on ice on the driveway of his home. He was, at the time, employed as district sales manager for his company, working out of his Salt Lake City home. He worked at home because the company did not have an office in that city. His claim was found compensable in light of evidence that he was clearing ice at the time, in expectation of delivery of a large package for use on a business trip.

For a 2007 case on the issue, see Wait v. Travelers Indemnity Co. of Illinois, 240 S.W.3d 220 (S. Ct. Tennessee 2007) (executive office of charity, who worked in home office, was in the course of employment when intruder entered home and assaulted her; however, injury was from neutral source and could not be said to have arisen out of employment).

Pennsylvania produced a telecommuter case in 2006. The court recognized that a worker laboring at a home office, with the employer's permission or acquiescence (this writer's conceptualization), is working at an extension of the employer's premises. Thus, when the worker took a “personal comfort” break and fell down the stairs, she was still considered as having suffered an injury arising in the course of employment. Verizon Pennsylvania, Inc. v. W.C.A.B. (Alston), 900 A.2d 440 (Pa.Cmwlth.2006).

The court conceptualized the claimant as having a stationary job at “a fixed location approved by employer as her secondary work premises.” The claimant was, hence, on the premises at the time. In addition, the claimant had not “abandoned” her employment on the premises by going upstairs to get a glass of juice. To the contrary: “[T]here is a well-established ‘personal comfort’ doctrine under which an employee who sustains an injury during an inconsequential or innocent departure from work during regular working hours, such as going to the bathroom, is nonetheless considered to have sustained an injury in furtherance of the employer's business... .” Verizon Pennsylvania, Inc. v. W.C.A.B. (Alston), 900 A.2d 440 (Pa.Cmwlth.2006).

Although relying principally on Pennsylvania precedents and statute, the court also cited older cases dealing with at-home telephone operators. See Bremner v. Industrial Commission, 63 Ohio App. 387, 17 Ohio Op. 128, 27 N.E.2d 164 (7th Dist. Geauga County 1938); Sheets v. Glenwood Telephone Co., 135 Neb. 56, 280 N.W. 238 (1938).