COVID-19 telecommuting and workers’ comp claims: How can employers minimize risks?
With the rapid spread of COVID-19, many social norms are quickly evolving and shifting. “Social distancing” was a phrase that was previously unknown just a month ago. However, the practice of limiting your contact with those outside of your home has become our new normal. On March 19, 2020, Governor McMaster issued Executive Order No. 2020-11. As part of that Order, Governor McMaster ordered all non-essential government employees to refrain from working in-person, as of March 20, 2020. (Executive Order Section 1A). State agencies and departments have been ordered, to the greatest extent possible, to offer telecommuting and work-from-home-options for these nonessential employees. (Id.) Many private businesses are also offering similar telecommuting options, in effort to flatten the Coronavirus curve. What does this mean for businesses and their liability under the Workers’ Compensation Act?
In order for a workers’ compensation claim to meet the minimum threshold for compensability, the activity being performed by the employee must arise out of and in the course and scope of his or her employment. According to South Carolina appellate court[’]s, “[t]he term “arising out of” refers to the origin of the cause of the accident. An accidental injury is considered to arise out of one’s employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. An injury occurs within the course of employment when it occurs within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while fulfilling those duties or engaged in something incidental thereto.” McGriff v. Worsley Companies, Inc., 654 S.E.2d 856, 376 S.C. 103 (S.C. App. 2007). Whether or not an injury occurring at home is compensable will be largely fact specific. However, when employees are directed to/required to telecommute from their homes, it is possible for their injuries to be considered to have arisen out of and in the course and scope of their employment.
What can employers do in the face of this changing landscape to minimize their potential liability for workers’ compensation benefits?
- Adequately investigate claims prior to accepting compensability. Practically speaking, these alleged work accidents will either be unwitnessed or witnessed by family members of the employee, which will make it invariably more difficult to investigate whether [or not] the purported accidents actually arose out of and the course and scope of the Claimant’s employment. Investigate these claims to determine whether the alleged injury was pre-existing in nature, unrelated to work, or whether there are any other potential defenses, prior to initiating any benefits.
- Encourage prompt reporting of alleged work accidents. This will allow employers to initiate their investigation in a timely fashion. Maintain regular contact with your employees while working remotely. This will provide employees with an opportunity to timely report any purported accident, injuries, or issues that may lead to a compensable claim.
- Set parameters. You may wish to establish designated work times and other guidelines for your employee while telecommuting, in order to clearly delineate when work activities being performed. This will also define what constitutes a work-related activity. Activities performed outside of those parameters, depending on the factual circumstances, maybe deemed a deviation that takes the activity outside the course and scope of employment.
- Thoroughly investigate. If you do have a compensable work-related accident that occurs while your employee is working from home, thoroughly investigate any potential third-party subrogation. If the employee is a tenant and their injury was caused by the negligence of a landlord in maintaining the property or other third-party, there may be an opportunity for third-party recovery.
This post has been prepared by Robinson Gray Stepp & Laffitte, LLC for informational purposes only and does not constitute legal advice. For more information, contact attorney Ashley Johnson.