The COVID-19 pandemic sent a large percentage of the workforce out of the traditional office and into the remote workspace. While many companies are beginning to phase back into onsite work for their employees, a recent poll from Pew Research suggests over half the current workforce hopes to continue working from home even after the pandemic is over. Additionally, many companies are even reporting increased productivity and decreased overhead costs, so it appears the pandemic will have a lasting impact on where employees are located during work hours for a large portion of American workforce. For workers' compensation purposes, this undoubtedly places the employer and insurer at a disadvantage when it comes to defending claims. The shift to the home workspace not only takes control of the work environment out of the hands of the employer, but also, in many cases, allows employees to be the only witnesses to their own work-related injuries. Once an alleged injury occurs, it will be very difficult to determine whether the employee was injured while engaged in work for their employer or while completing personal tasks. This, of course, is a tremendous concern for Georgia employers and their insurers.
Georgia's statutes do not specifically address home workspaces, however, for an injury to be compensable under the state Workers' Compensation Act, employees have the burden of proving they sustained a compensable, disabling injury arising out of and occurring in the scope of their employment. O.C.G.A. § 34-9-1(4); Dasher v. City of Valdosta, 217 GA. App. 351 (1995); Holt Service Co. v. Modlin, 163 Ga. App. 283 (1982). While the statute and case law were certainly developed with the traditional office workspace in mind, they apply nonetheless to remote workspaces. An injury "arises out of" the employment when a reasonable person, after considering the circumstance of the employment, would perceive a causal connection between the conditions under which the employee worked and the injury received. Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339 (2004). Furthermore, injuries do not "arise out of" employment when they cannot fairly be traced to the employment as a contributing proximate cause, AND when the injury comes from a hazard to which the employee would have been equally exposed apart from employment. Id at 343-46.
An injury occurs "in the scope of" employment when the injury occurred 1) within the period of employment 2) at a place where the employee may reasonably be in the performance of their duties, and 3) while they were fulfilling those duties or something incidental thereto. Hadsock v. J.H. Harvey., 212 Ga. App. 782 (1994). A risk is incidental to the employment when it belongs to, or is connected with, what an employee has to do in fulfilling what they were hired to do. Thornton v. Hartford Accident & Casualty Co., 198 Ga. 786 (1945).
While there is very little Georgia case law on the subject, and no published cases since the beginning of the COVID-19 pandemic, the Courts have provided some direction for distinctions between work-related and non-compensable injuries in the remote working context. The Georgia Court of Appeals in 1973 made a distinction between deviations for normal comfort and purely personal tasks, finding that injuries that occur during deviations from work for reasons such as getting refreshments or using the restroom are compensable, while deviations from work to perform household chores or socialize are not within the scope of employment. Edwards v. Liberty Mut. Ins. Co., 130 Ga. App. 23 (1973).
In a more recent case from 2004, the Court of Appeals shed light on its willingness to adopt a broad interpretation of an employee's "scope of employment" when an injury occurs through a blend of work-related and personal activities. In this case, a 24-hour on-call nurse was carrying a takeout pizza, along with some medical reports, from her car to her home when she fell and sustained an injury. Amedisys Home Health, Inc. v. Howard, 269 Ga. App. 656 (2004). The Court acknowledged that carrying a pizza for family dinner is a purely personal task, however, they ultimately decided that because Howard was also "bringing time-sensitive, job-related paperwork and job-related equipment into her home," her injury arose out of and occurred in the scope of her employment. Taking direction from the Howard case, it seems that in vocational-personal hybrid situations, the Court tends to favor the employee.
Since the ratio of permanently remote employees to onsite employees is certain to increase in the coming years, we are hopeful this will push the higher Courts in Georgia to restrengthen the once strong idiopathic defense for contending that an injury did not "arise out of" the employment. As it stands now, the employer and insurer sits behind the eight ball given that remote employees have nearly exclusive control over the facts surrounding their work related injuries, and a revamp of the idiopathic defense would certainly help to even the playing field. In 2009, the Georgia Court of Appeals found a knee injury sustained by a nurse while turning around to grab a cup of water non-compensable because the act of turning around to grab a cup of water did not expose the employee to a risk "peculiar to her employment." St. Joseph's Hosp. v. Ward, 300 Ga. App. 845 (2009).
In 2018, however, the Court overruled Ward in Cartersville City Schools v. Johnson. There, a teacher fell and injured her knee while walking to the front of her classroom. The Court in Johnson held that if Ward had applied the "proximate cause" as well as the "equally exposed" element of the Chaparral Boats standard, the nurse's injury would have been found compensable because the turning to grab the cup was a part of her employment, making it a proximate cause of her injury. Applying this standard in the remote working context essentially makes any injury at home "arising out of" the employment so long as employees can find some way to proximately relate their mechanism of injury to their work duties. Given that remote employees will have almost exclusive control over the facts surrounding their claim, we are hopeful the Georgia Supreme Court will soon reel in the Johnson decision due to the sudden, unexpected shift to a predominately remote workforce that was not contemplated by the Court of Appeals in 2018.
Until that time comes, however, employers and insurers need to take active steps to reduce liability for remote work-related injuries. Below is a list of suggested best practices to limit what "arises out of and occurs within the scope of" a remote worker's employment:
- Clearly define the employee's normal working hours, including lunch and other breaks. This should help exclude many claims that may otherwise be compensable because the employee is not expected to be performing work outside of their set hours.
- Clearly define the employee's scope of employment. Since most remote work is done while sitting behind a computer, a clear statement of the employee's work duties can exclude a significant amount of injuries since individuals are rarely sustain significant injuries while simply sitting down at a desk.
- Clearly define the parameters of the employee's home-work space. For some, this may simply be a countertop, while for others it may be an entire room. Regardless, setting clear limits on the physical space in which employees are "at the office" will help reduce liability for injuries that occur in other areas of their home.
- Set strict policies for reporting injuries and develop an extensive initial report of injury policy which gathers a detailed account of the employee's mechanism of injury. Since remote employees will have almost exclusive access to the fact surrounding their injuries, it is more important than ever that employers and insurers gather as much information as possible as soon as possible after the injury.
Originally published JUNE 1, 2021 .
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