At the onset of the COVID-19 pandemic in 2020, many employees around Wisconsin transitioned from a traditional office setting to working remotely from home. Since then, new questions have been raised by workers regarding which at-home injuries might be covered under the Worker’s Compensation Act.

The short answer is that most at-home injuries suffered in the course of an employee’s job duties are covered under the Worker’s Compensation Act. However, workers’ compensation insurers can be quick to deny at-home injury claims.

Therefore, in order to mitigate potential headaches with the workers’ compensation insurer or the likelihood of outright denial, employees injured while working from home need to independently and timely report the injury to their employer and independently and thoroughly document the incident on their own.

Wisconsin Workers’ Compensation Fundamentals

The same legal elements apply whether the injury occurs at home or in the physical, brick-and-mortar workplace.

There are five elements to a workers’ compensation claim in Wisconsin:

• the existence of an employer-employee relationship;

• a physical or mental injury;

• the injury occurred in the course of the worker’s employment;

• the injury arose out of worker’s employment; and

• the injury was not self-inflicted.

Regardless of whether the employee is working on the employer’s premises, traveling for work, or working from home or other remote office, if the employee meets the above-listed statutory criteria for a compensable claim under the Worker’s Compensation Act, then they qualify for workers’ compensation benefits.

At-home Worker’s Compensation Claims are Likely to Face Increased Scrutiny

For a variety of reasons, injuries that occur while working remotely are likely to be subject to additional scrutiny by the employer’s workers’ compensation carrier.

Since the Worker’s Compensation Act includes several ways for the insurer to avoid liability depending on the circumstances of an injury, approval or denial of benefits comes down to the specific facts of each case. Therefore, employees must thoroughly report and record the specific facts of their injury to maximize their chances of an approved claim.

Here are some best practices for reporting at-home injuries, given the heightened scrutiny issue:

Notify the employer of a work injury immediately. Whether the employee injured their ankle while standing up at their home office desk or fell down the stairs while on a work call, if an employee suffers an injury while on the clock or performing work duties from home, it is imperative they contact the employer immediately to inform them of the details of the accident. The employer should then inform their workers’ compensation insurer to initiate the claim process.

Seek medical help promptly. Employees should seek any medical treatment they feel is necessary at their nearest emergency room or urgent care depending on the severity of the injury. In addition, employees need to let the health care provider know the name of their employer and that the injury happened while they were working so they can classify the claim under workers’ compensation for medical billing purposes.

Cooperate with the workers’ compensation insurer. Depending on how quickly the claim is reported, the workers’ compensation insurer should contact an injured employee within several days to initiate investigation of the claim. The employee will need to answer the insurer’s questions and provide medical authorizations giving access to the medical records related to the incident. Within 2-4 weeks, an injured employee should receive notice from the workers’ compensation carrier regarding whether they been approved or denied benefits.

Rebutting Worker’s Compensation Defenses to At-home Injuries

Two of the most common defenses for injured remote workers to expect include:

Defense #1: Lack of Evidence/Delayed Reporting. Unlike an injury that happens on the employer’s premises, at-home injuries will likely go unwitnessed or witnessed only by someone who lives in your immediate household. This makes reporting the injury to the employer immediately and seeking medical treatment shortly after the injury crucial.

In addition to immediately reporting the injury, workers should submit clear documentation of an injury with supporting photos and/or doctor notes. These kinds of evidentiary preservation methods can make the difference between the insurer approving or denying a workers’ compensation claim stemming from an at-home injury.

Defense #2: Injury Occurred Outside Course of Employment/Deviation from Work Duties. Given the mix of personal and professional obligations when working from home, the most common “course of employment” defense to expect from the workers’ compensation carrier is that the employee was deviating from their employment at the time of injury or that the deviation itself caused the injury in question.

An injury falls within the course of employment if it occurs while “performing services growing out of and incidental to your employment.” Regardless of whether the worker is on employer’s premises or working from home, workers’ compensation benefits are not available if the injury results from an activity that falls outside of the course of employment.

Said differently, the injury while working from home must be directly connected to the employee’s job duties, with a few key exceptions:

• The course of employment is not broken when an employee is taking lunch or other designated breaks agreed upon by the employer.

• Employees are still in the course of employment when taking short breaks to use the restroom, grabbing a drink or snack to bring back to their at-home workstation, or any other brief action taken for “personal comfort.”

Employees are not in the course of employment if they get injured while deviating from their job duties. In the broadest terms, a deviation from employment is a willful abandonment of job duties to perform an act in furtherance of a personal, nonwork-related purpose.

Each alleged deviation depends on the specific facts of each case – poor judgment and negligence do not always arise to the level of a deviation. Employee conduct that arguably benefits employer’s interests will not generally constitute deviation.

In the context of working from home, some hypothetical deviations include:

• leaving your desk to go play with your young child;

• taking a short break to help your school-aged child with remote-learning;

• getting intoxicated while still on the clock; and

• getting in a motor vehicle accident while running a personal errand.

Worker’s Compensation Case Law for Employees Working from Home

Since the early days of the Wisconsin Worker’s Compensation Act, courts have liberally construed various workers’ compensation provisions, including those relating to the course of employment. Wisconsin law presumes that on-the-clock employees, whether at home or on the employer’s premises, are in the course of their employment.¹

It is therefore the employer and/or workers’ compensation insurer’s burden to provide evidence to the contrary if they wish to rebut this presumption of continuing employment.²

Before the widescale transition to working from home during the COVID era, a few cases regarding at-home injuries established precedent and administrative guidance:

• In Black River Dairy Products, Inc. v. DILHR,³ a delivery driver whose office was 100 miles from home slipped and fell in his driveway as he was walking out to head to work. Benefits were awarded because he regularly did bookwork from home.

• Likewise, in Augustine v. Kenosha Visting Nurse,⁴ benefits were awarded to a nurse who was injured while doing paperwork from home as she was caring for her sick child.

Overall, in deciding whether to grant benefits, Wisconsin courts have given weight to whether the work-from-home arrangement was agreed upon by the employer or necessary for the job – not just for the personal convenience of the employee.

During the COVID and post-COVID eras, many employers have now required their employees to work from home, which will tend to favor injured workers challenging a denial of benefits for an at-home injury.

Worker’s Compensation Denials Depend Heavily on Factual Context

On a final note, whether the workers’ compensation insurer denies for lack of evidence, delayed reporting, or a claim that the employee was deviating, it is important to keep in mind that course of employment denials are highly fact-intensive. No two cases will be the same, and if a deviation can be linked with the furtherance of an employer’s interests or the employee’s immediate personal comfort then courts are likely to find the employee was in the course of their employment.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Tewes v. Industrial Commission, 194 Wis. 489, 215 N.W. 898 (1927).

² Song ChaLo v. Wausau Area Hmong Mutual Ass’n, 2005 WL 3037961, WC Claim No. 2000-045346 (LIRC Oct. 11, 2005).

³ Black River Dairy Products, Inc. v. DILHR, 58 Wis. 2d 537, 207 N.W.2d 65 (1973).

⁴ ​Augustine v. Kenosha Visting Nurse, 2000 WL 1498228, WC Claim No. 1998-064631.