The Covid-19 pandemic brought changes to the way we live and work that could never have been imagined only several years ago. Mask mandates, stay-at-home orders, court closures and travel restrictions are just a few of the “new order” of things that came to be from the pandemic. Another change that no one could have imagined just a few years ago would be the number of workers who now work from home instead of going to an office on a regular basis. This gives rise to a whole new area of potential claims under the Louisiana Workers’ Compensation Act.
Over the years, there has never been a distinction as to whether a claim is compensable as to the location of the “accident.” The only legal requirement is that a compensable claim “arise out of” and occur during the “course and scope” of one’s employment. But with more and more employees working from home, the issues that we will face in years to come will rise to a whole new level.
While the typical employee will have set hours and will abide by those hours, many employees working from home will work at odd hours as suits their personal schedules. I have received emails from adjusters at 8:00 p.m. on a Friday night and close to midnight on a Saturday night. No one would consider these to be normal working hours, but that employee is working nonetheless, and if injured while working would be entitled to compensation benefits. But that raises the question of what type of injury would be covered. If the adjuster working at midnight on a Saturday trips while getting another cup of coffee, would that be compensable? Would it even be questioned if that same employee tripped at the office while getting a cup of coffee? Of course not. What if that same adjuster while working from home gets up to take a hot pot off the stove and burns himself? Since there is no benefit to the employer, that claim should not be covered. But change one small fact and have that same adjuster be on a conference call using a wireless headset and the same accident occurs. Is that claim covered? There is no answer to the question so far in Louisiana, but you can see that the road ahead is full of pitfalls.
The next problem we will face are the situations where there is no real accident but because of sitting on a couch with a laptop all day, an employee develops neck or back pain. Since the beginning of the pandemic, there has been an increase in the number of doctor’s visits for neck, back and shoulder injuries due to bad posture from working at the kitchen table, working from coffee tables, working from beds and sitting hunched over a computer. Are these claims compensable? We don’t know the answer yet as the courts have not weighed in these issues. If the courts follow the strict definition of an “accident,” which requires an “identifiable event,” the answer should be no. However, case law is replete with rulings in favor of an employee who is unable to show a specific event.
What can employers do to combat this new trend in potential claims? If you have employees working from home, set specific work hours. While not a panacea for all problems, it at least gives you an argument that the adjuster working at midnight was not in the course and scope of his or her employment. Encourage, or even provide, ergonomic workstations/chairs for those employees working from home. Require periodic breaks for that employee to get up and move around to reduce strain on neck and back muscles. To the extent possible, require an employee to have a designated work area away from the rest of the house.
This is an area that is sure to see a lot of litigation in the coming years, and we will have to watch what the courts are doing and adjust to how we handle these claims. Hopefully, we won’t see rulings, like a recent one from Germany, where an employee who slipped down the stairs and broke his back while “commuting” from his bedroom to his home office was entitled to claim worker’s compensation benefits.
