Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Benefits newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (December 15, 2020, 10:20 AM EST) --
 |
| Diana Tsudik |
The uptick in home-office workers' compensation claims that we've recently observed in practice certainly suggests that the home is rife with danger.
And since the work-from-home trend is slated to extend well beyond the COVID-19 vaccine, and may be permanent for some, California employers should become well-acquainted with the rules pertaining to these types of claims.
General Rule
The general rule in California states that injuries suffered by employees while performing their regular work duties at a fixed place of business, in a manner authorized by the employers, are generally always in the course of the employment.[1] Typically, this happens at a fixed site, the employer's place of business. But there are exceptions.
Home as a Second Job Site Exception
The home as a second job site exception is found if the employer expressly or impliedly directs the employee to work at home.
The implied direction will be shown if the work needed to be done at home and the employer knew and expected that it would be done there.[2]
As long as the employee is unable to complete their usual work duties at the usual place of employment and the employer authorizes the home as a workplace, the employer would be hard-pressed to dispute the injury as industrial.
California courts have also concluded that the performance of work at home involves an incidental benefit to the employer, further bolstering the position that the injuries at home should be industrial.[3]
These days, the home is a primary not a secondary job site for many, making it that much easier to fall within this exception.
Add to the mix the parent/employee that encounters toys, books or an errant shoe on the way to a coffee break, the risk of injury is that much higher.
And so, when a work-at-home injury is alleged, the first step is to determine what the employee was specifically doing when the injury arose. Most would be surprised as to what activities qualify as compensable under the personal comfort doctrine.
The Personal Comfort Doctrine
California's personal comfort doctrine[4] holds that injuries sustained during personal acts of comfort that take place on the employer's premises are usually compensable if not explicitly forbidden, as they are considered to be reasonably contemplated by employment.
These are activities that are necessary for the personal comfort, convenience or welfare of the employee, and are within the course and scope of employment, even if the act is not part of the employee's specified work duties.
Injuries sustained during acts of personal comfort were found compensable because under personal comfort doctrine they are "a normal human response in a particular situation" or "an acceptable practice in the particular place by custom" regardless of whether there is a benefit to the employer.
The courts recognized that while the benefits rationale was still reflected in court decisions, it was little more than fiction. These include the majority of an employee's acts upon the employer's premises, such as eating lunch, getting a drink of water, smoking tobacco where not forbidden by the employer, attending to the wants of nature, changing to or from working clothes, and many others.
California courts have also held that acts such as pouring oil into a car engine while waiting to begin work, playing catch on the employer's lawn during a paid coffee break, helping a fellow employee start a stalled car, and jumping into a reservoir to rinse off after picking grapes[5] were acts of personal comfort reasonably anticipated by the employer.
Other acts causing compensable injury have included using the restroom; getting treatment during a break for an ingrown toenail; chasing a picked lemon into the street when it rolled away;[6] chewing gum; using a curling iron; performing isometric exercises at the desk; getting a flu shot; buying a television as part of an employee benefit, or tapping a co-worker on the shoulder while passing by.
Despite this exhaustive list of activities, not every single activity falls within the personal comfort doctrine. The nature of the employee's activity is particularly relevant to the issue of compensability.
For instance, there are some activities no reasonable employer would condone, such as injuries resulting from unusual, bizarre, daring, risky or deviant behavior. Nor does this doctrine apply to activities with an inherent potential for injury to the employee or others.
For example, fleeing from immigration and drowning in a ditch, testing a loaded gun at work or using a water slide,[7] were acts that didn't qualify under the personal comfort exaction.
The test is whether the injuries sustained by employees performing activities strictly for personal purposes.
Courts have gone so far as to suggest that the act need not even be of benefit to the employer, necessarily, because, certain acts are, under the common standards of humanity, so normal, acceptable and reasonably to be expected in the course of employment, that they must be impliedly contemplated as permissible acts under the employment contract.
Seemingly, context plays a big role. And these days, it's safe to assume that almost anything goes.
Employers' Takeaways
Some proactive measures can be taken to get ahead of the potential work-from-home injury claim:
- If possible, have an ergonomic specialist review the workspace. As an in-person analysis is unlikely, a Zoom/FaceTime review of the space is optimal.
- Have the employee take pictures of their workspace.
- Request safety surveys.
- Provide employees with the resources needed to set up an ergonomically correct station.
- Encourage breaks.
- Mitigate complaints quickly at the outset, respond quickly, and offer assistance.
The longer we work from home, the more common these work-from-home injuries will be, so California employers need to be ready for them. Responding quickly and taking the claims/complaints seriously will make a huge difference.
Diana Tsudik is a partner at Gilson Daub LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://casetext.com/case/ocean-a-g-corp-v-industrial-acc-com-2.
[2] https://law.justia.com/cases/california/court-of-appeal/3d/78/151.html.
[3] https://law.justia.com/cases/california/supreme-court/3d/40/345.html.
[4] https://caselaw.findlaw.com/ca-court-of-appeal/1837941.html#:~:text=The%20personal%20comfort%20doctrine%20provides,to%20his%20comfort%20or%20convenience.
[5] https://casetext.com/case/sully-miller-contr-co-v-workers-comp-appeals.
[6] https://casetext.com/case/sully-miller-contr-co-v-workers-comp-appeals.
[7] https://caselaw.findlaw.com/ca-court-of-appeal/1009965.html.
For a reprint of this article, please contact reprints@law360.com.
