The changed circumstances precipitated by the COVID-19 pandemic have resulted in a significant (and in some workplaces, dramatic) increase in employees who are working from home. There exists a good possibility that these working conditions will remain permanent for some employers and employees as employers now realize the economic and operational efficiencies generated by having employees from remotely and employees enjoy the work/life balance generated by working from home. Despite this developing trend, Ohio’s workers’ compensation laws have not to this point addressed coverage for employees who are injured while working from home. That omission in the law is about to change.
On June 24, 2022, Governor Mike DeWine signed House Bill 447 into law, and which will go into effect in 90 days (which we believe will be September 22). The bill precludes employees from receiving workers’ compensation benefits for injuries sustained while working from home unless certain factors are met. Ohio Revised Code §4123.01(C) defines an “Injury” broadly as “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.” Prior to June 24, 2022, the statute excluded four categories of injuries from the statutory definition of “Injury” absent specific conditions being met. The four categories are (1) psychiatric conditions in the absence of a physical injury, (2) natural deterioration injuries, (3) injuries incurred in employer sponsored recreation or fitness activities and (4) aggravation of pre-existing conditions.
H.B. 447 revises R.C. §4123.01(C) to exclude work from home injuries from the statutory definition of “Injury” stating that “Injury” does not include:
(4) Injury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home and that is separate and distinct from the location of the employer, unless all of the following apply:The phrase “arising out of” the employment used in subsection (a) refers to whether there is a causal connection between the employment and the injury. Factors to be considered are the proximity of the scene of the accident to the place of employment, the degree of control the employer had over the scene of the accident and the benefits received by the employer from the employee being at the scene of the accident. This is a low bar to clear. If the employee is working from home, the injury is both proximate to the place of employment and providing a benefit to the employer.
a. The employee’s injury or disability arises out of the employment.
b. The employee’s injury or disability was caused by a special hazard of the employee’s employment activity.
c. The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.
When determining whether a work from home injury is compensable, the focus will be on determining whether the injury was caused by a special hazard of the employment and whether it was sustained in course of performing an activity for the exclusive benefit of the employer.
To demonstrate that a “special hazard” is present, the injured worker must demonstrate that: (1) but for the employment, the employee would not have been at the location where the injury occurred; and (2) the risk of injury is distinctive in nature or quantitatively greater than the risk common to the public. This is significant, because an employee does not have to demonstrate that an injury sustained on the employer’s premises resulted from a risk distinctive or greater than common to the public. Therefore, a slip and fall in a home office may not be compensable because the risk of falling at home is a risk common to the general public. In contrast, a slip and fall on the employer’s premises will be compensable in most circumstances.
The statutory definition of “Injury” requires the injury to be sustained “in the course of the employment.” This phrase refers to activities performed during the workday that are usually and reasonably incident to the work of the employer. For instance, an employee that is injured while on a break on the employer’s premises will generally have compensable claim, although not engaged in a specific work-related task. However, R.C. 4123.01(C)(4)(c) requires that the injury be sustained “in the course of an activity” undertaken by the employee for the exclusive benefit of the employer.” This indicates that the employee must be injured while performing a specific task in furtherance of the employer’s business rather than something incidental to the employment.
H.B. 447 should bring some clarity to employers struggling to determine whether an unwitnessed work from home injury is compensable. However, ambiguity still exists. For instance, the terms “employee’s home” and “work area” are not defined terms and may be subject to interpretation. Employers should require employees to identify the address or location of their “home” and the “work area” within the home that the job duties will be performed. Employers should also provide injury reporting training to its work-from-home employees and require a written injury report. The compensability of work-from-home injuries will be fact-specific, and employers will need to gather sufficient information to determine whether to certify or reject a claim.
*Scott Coghlan, chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have a question about House Bill 447 or any other workers’ compensation or OSHA related questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.