There is no doubt working in the modern world looks different than the workplace of a hundred years ago when workers’ compensation laws took effect. Even in the last few years, sweeping changes have occurred in workers’ compensation law. Technology, COVID-19, and globalization all mean that a workplace injury can happen anywhere. This fundamental change in the way we work has far-reaching implications for workers’ compensation law and injured workers.
When “Injured at Work” Might Not Be at Work
What does workers’ compensation look like for injured workers who are not under their employer’s roof?
What is your “workplace”? Where are you covered if you have an injury related to your job? How will the NY Workers’ Compensation Board decide if your injury “arises out of and in the course of employment”? What about driving to and from work locations? If you are injured outside of the four walls of your employer’s building, these are questions that need to be answered—sometimes before you can receive medical treatment or payments for lost time from work.
“Inside” Employees and the Traditional Rule of “Coming and Going”
If you work at an office, in a factory, at a school, in a hospital, or anywhere else that’s considered a traditional workplace owned by your employer, you are covered under workers’ compensation while at work. This is known as being an “inside employee” for workers’ compensation purposes.
While traditionally “inside employees” are not covered by workers’ compensation on their commute, there are times when an injury you suffer arriving at or leaving work might be covered. The general rule is whether the injury is caused by conditions that exist just for employees, or by a “risk shared by the general public.”
Imagine a person who works in an office. They leave home in the morning to drive to work. As they walk out of the house, they slip on an icy sidewalk and fall. This is not a workers’ compensation injury.
Now imagine the same person drives to work, parks, and walks to their office. When they touch the door handle of their employer’s building to open the door, they fall in the same way. This employee is covered and should file their injury as a workers’ compensation claim.
What is the difference? The second employee was in front of the door to their office only because they were going to work. This was not a “risk shared by the general public,” but something caused by the fact the employee was going to work.
This rule becomes complicated when an employee is injured in their employer’s parking lot or when doing things like crossing the street in front of their workplace.
The easiest way to remember when inside employees are covered for injuries in workers’ compensation is called the doorknob rule: The closer an inside employee is to the doorknob of their workplace, in both time and distance, the more likely it is their injury would be considered work-related.
When are You “at Work”?
On the road again (or always) – “outside” employees with “portal to portal” coverage
If the road is your office, you might wonder when and where workers’ compensation protects you. The law is deceptively simple: “Outside” employees are entitled to “portal to portal” protection, meaning from the time a worker leaves their home to when they return. An “outside employee” is anyone who works outside their employer’s premises.
The situation becomes difficult when there are questions about whether an employee “deviates” from his employment. A “deviation” is when an outside employee performs a task that is not work-related. For example, a plumber with a company van kept at their house stops for breakfast on the way to their first call of the day and is injured in the drive thru line.
If you are an “outside” employee injured during a deviation, the Workers’ Compensation Board will consider how reasonable it was for you to go off track at the time of your injury. Were you 100 miles out of your way on a purely personal trip? Or were you stopping for a meal or bathroom along your way? These are questions that will be resolved with evidence—including witness testimony—at a hearing.
Workers’ Compensation for Remote Workers
Do I get workers’ compensation if I tripped over my pajamas during a video meeting?
As work from home becomes more common, and in light of the COVID-19 pandemic, the Workers’ Compensation Board wrestles with the question of work injuries happening at home. Workers who are injured at home while working often face a blurry situation—were they working at the time of their injury? For these people, the Board will look for a “regular pattern of work at home” to determine whether an injury is compensable. To see whether that pattern exists, the Board will consider how often the person works from home, whether there is work equipment kept at home, and whether the employer “assigned” the employee to work at home, or merely allowed it.
Once the Board finds there is a “regular pattern” of working from home, the home is considered a workplace as much as the employer’s premises. This means a fairly broad view of whether an injury arises out of employment. In recent years, the Board established claims for work-at-home employees who were injured while gathering personally owned props to use on a video meeting, assembling furniture they purchased with personal funds for their home office, and even while preparing lunch in their home kitchen.
Grey Areas and Legal Judgment Calls
Employees who are not on their employer’s premises at the time of their injury may still be covered by workers’ compensation. Whether or not this happens, though, will be a question the Board will resolve through litigation. That means hearings, testimony (including from the injured worker), and decisions made by a judge about whom to believe and what is “reasonable.” While judges try to find patterns in the facts that remind them of prior cases, the truth is that no two cases are alike. If you are injured outside the employer’s premises, it will very likely benefit you to hire an attorney experienced in answering these questions. This is especially true where your employer’s insurance carrier/administrator says they are challenging or “controverting” your case.
If you think you were injured while on the job, contact the workers’ compensation experts at Lewis & Lewis to learn more about your rights and to receive a free consultation.
