Do Workers’ Comp Benefits Apply When Employees WFH (Work From Home)?

The impacts of COVID are undeniable. Chief among them has been the proliferation of a WFH (Work From Home) workforce. Gallup reported that 43% of employees work from home at least some time. Businesses and employees have had to adapt to that new reality. One of the questions that arises is whether or not workers’ comp benefits apply for WFH.

The short answer is yes. Workers’ compensation benefits may apply for injuries sustained by employees while working from home. Employees are covered for injuries regardless of location, outside or inside the employer’s workplace. The primary consideration is whether the injuries are, in fact, work-related. That said, whether the injury is truly work-related is a more complex question. It comes down to the details.

It’s clear that if an employee slips while moving a box on the employer’s premises while performing work, the corresponding injury is work-related and subject to workers’ compensation benefits. But what if that same action occurs while the employee is working from home? The answer depends on how and why the accident happened.

  • Did the injury occur while the employee was doing something on the employer’s behalf? Compare a fall while walking down the stairs to perform a personal household function, versus a fall while walking down the stairs carrying work files to the employee’s at home desk.
  • Was the employee required to conduct the activity by the employer? I.e., does the activity resulting in the injury further the interests of the employer.
  • Was the action approved by the employer even though it happened off-site? I.e. did the employee take work home on a voluntary basis, or has the employee been authorized or directed to work from home, either part time or full time.

The burden of proof is on the employee. But, if an employee is able to explain how the injury was work-related, they may very well be given the benefit of the doubt. According to courts, it’s irrelevant whether or not the employer has control over the home-based work environment.

Commonwealth of Pennsylvania Rulings

Pennsylvania addressed the issue of workers’ comp for WFH employees during a 2006 case, Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Alston). An employee was working from home and fell down her stairs injuring her neck.

The injury happened when the employee left her basement office to get a drink. When returning to answer the phone, she fell. She filed a claim alleging she was injured furthering her employer’s business interests. The Commonwealth Court ruled in her favor.

The ruling was determined based on two factors:

  1. The home office was approved “secondary work premise.” Essentially, the employee’s home was an extension of the employer’s premises.
  2. The timing of the injury fell under the “personal comfort doctrine”. The employee was authorized to work from home by her employer and was working prior to leaving her office to get the drink. The Court focused on the their determination that the employee sustained an “injury arising in the course of his employment.”

With regard to “off premises” work injuries, the Commonwealth Court has consistently determined that minor deviations from work, like getting a drink, does not remove an employee from the “course and scope of employment” and therefore an employee may still qualify for benefits. This concept has come to be referred to as the “personal comfort doctrine.” Employees are entitled to deviate from work for personal comfort like going to the bathroom or getting lunch to perform work more effectively.

Addressing Workers’ Compensation Risks for WFH Employees

Generally speaking, courts error in favor of employees regarding distribution of workers’ compensation benefits. The premise is that the Courts are to interpret the facts of a given case in the context of the humanitarian nature of the workers’ compensation law.

By law, employers are responsible for providing a safe work environment regardless of whether an employee is on premises or telecommuting.

A business owner, may take steps to reduce liability for a workers’ compensation claim.

  1. Establish policies relating to WFH employees. Create a written policy that governs employees obligations for working from home.
  2. Define work hours. WFH workers may fail to take appropriate breaks leading to fatigue. As a result, injuries may occur, including carpal tunnel, neck pain, back pain, and posture issues. Musculoskeletal disorders annually exceed $50 billion in workers’ comp claims according to OSHA.
  3. Establish home office guidelines. Make sure employees understand and agree to WFH guidelines. They should have an appropriate workstation setup to prevent repetitive stress injuries.
  4. Examine home office setups. By reviewing home office setups, you can eliminate potential work hazards that might lead to an accident.

Filing a Workers’ Comp Claim

Pennsylvania employers are required to carry workers’ compensation insurance. The system of workers’ compensation is considered a no-fault system . If an employee is granted WFH privileges, their home is their workplace and injuries occurring there may result in workers’ comp benefits.

Should an injury occur at home, both the employer and the employee should follow the same protocol as if the injury occurred on the employer’s premises. The first step an employee should take is to report the workers’ compensation claim. Work from home injuries may be viewed with some initial skepticism by the employer and the workers’ compensation carrier, so WFH workers need to pay particular attention to the details surrounding the circumstances that lead to the injury, and making sure they accurately communicate that information to their employer.

The first step for the employer and it’s worker’s compensation carrier is a thorough investigation. Naturally, an immediate on premises investigation may not be possible, but a thorough telephonic fact finding is a necessity. Remember, these claims are highly fact specific.

Talk to a Workers’ Comp Lawyer

If you have any questions or are looking at a workers’ compensation claim, it pays to talk with a lawyer near you. Our local law offices are located in Doylestown and Norristown and now Cherry Hill. We’ve helped countless clients with workers’ compensation claims.

Our law firm offers comprehensive legal services ranging from workers compensation to business law, litigation, and employment law.

Social Media and Divorce – 5 Tips to Follow Right Now

Understand that anything you type, post, or reply can and will be used against you in a court of law.

It seems like we can’t turn on the news today without hearing about yet another social media or texting disaster. We watched the downward spiral of Armie Hammer’s career due to his social media posts shared allegedly with his friends only. Next we watched the GM of the New York Mets face termination for sending below-the-belt photographs via text to a woman who did not invite those images. With instant communication at our fingertips, it is easy to make errors in judgment that you regret moments later.

A cartoon was circulating among attorneys recently, the message of which was “don’t put anything in writing you do not want read aloud at a deposition to a room full of people.” That advice couldn’t be more accurate, but even more so when facing the high-stress, high-conflict world of a divorce or child custody case in Pennsylvania.

Here are 5 tips about social media and divorce cases that may help you avoid disaster:

1. Stop!

Take a break from Instagram, Facebook, Twitter, or anywhere that you post content, as harmless as your posts may be. There is nothing good to come from sharing details of your family’s life on a public platform at this time. Stop sharing and do not let other’s share on your behalf without your permission. Also, it’s time to change your passwords.

2. Erase Your Urge to Erase

Deleting past posts to avoid making yourself look a certain way is a big ethical no-no. What can be found will be found. Control what you can control, which is your digital footprint moving forward.

3. Don’t post anything you wouldn’t want read aloud in court

Your communications to your spouse or others can be admissible in court – this includes texts, emails and other forms of messaging. If you are feeling emotional, put your phone down until you are calm and able to think clearly without emotional influence.

Identify and utilize stress relief outlets to help you resist shooting back quick, but regretful communications. It may be as simple as walking around your house for 5 minutes or popping on a song that calms you. Have quick stress relievers available to you and use them anytime you feel your heart rate rising.

4. Monitor your children’s use

If your children use social media, you may already be keeping an eye out. If not, now is a good time to start. Divorce and custody cases are tough on your kids. Be sure they are not using their online community as a therapist instead of communicating with you or a trusted individual.

5. Compartmentalize

Consider compartmentalizing the time you spend dealing with the stress of your divorce or custody case. I have multiple clients who will check emails on certain days only. I also have clients who ask for a break on weekends. This is particularly important if you have a spouse or partner who engages in excessive communication where there are not issues that require immediate action.

Setting a reasonable amount of time each week during which you will handle and respond to communications and relaying that to your attorneys and the other party can provide you relief from feelings of being overwhelmed. Of course, emergencies can happen which will not fall into those windows, but most of the time, any communication can wait a day or two so long as you disclose your timetable in advance.

Following the above tips could protect you from the unenviable position of having your communications read aloud in court or used against you. In many cases, social media and divorce don’t mix. Be mindful of your online presence and it won’t come back to bite you!

How Might the Pandemic and The CARES Act Impact a Divorcing Couple’s Business?

Beware: the CARES Act may distort business cash flows from 2020.

Almost every business faced an unusual year in 2020. When the pandemic hit, work slowed dramatically then came the whiplash effect. In particular the sweeping Coronavirus Aid, Relief, and Economic Security (CARES) Act provided short term help for many businesses.

While the hospitality and entertainment sectors tanked, some businesses soared. (Did you need cardboard boxes?) As the business books and records are studied during a pending divorce and support litigation, the CARES Act impact on the business will distort the usual balance sheet entries. There will be changes in the treatment of business income expenses and losses.

Those changes may be unfamiliar and in some cases misleading. Why?

  • When Payroll Protection Program (PPP) loans were awarded, business expenses (payroll, taxes, rent, and qualified expense) were paid from these federal funds. Now, many and possibly most PPP loans are being forgiven. The forgiven loans that paid certain expenses will result in deductions for those expenses. Loans over Two Million ($2,000,000) Dollars are routinely being audited by the federal government. Spot audits are possible. Inquiries by divorce courts and the litigants should include a review of all loan applications and loan forgiveness paperwork. In the event a business received COVID-19 related loan money, the 2020 business cash flow may be artificially high.
  • Employers can delay payment of payroll and self-employment taxes for 2020. Fifty percent are due in December, 2021 and fifty percent are due in December, 2022. The delayed payment will be made without interest charges. In the meantime, the liability entry will remain on the books.
  • The 2020 legislation reversed restrictions on loss carrybacks. A business owner can now amend tax returns for 2018 and 2019 to allow five years loss carryback. The losses in 2020 also benefit from the five year carryback.

In cases when a business is owned by someone in the midst of divorce proceedings or litigation for payment of child support or dependent spouse support, the changes in the typical business cash flow may appear unusual. The law may create a change in the way company income (revenue and expenses) is recorded and the loss carryback could cause confusion and possibly suspicion or financial mistrust. While a federal government or bank audit of a PPP loan may find mistreatment, the business owner may decide bending the rules is possible because the chance of audit is remote.

Yet in the context of divorce and support litigation, the forensic accountant and advocate for the non-employed spouse will look closely at the books and records.

Some of the topics based on the three changes in the law follow:

  1. The business owner who received a PPP loan, later forgiven, may argue the 2020 revenue and cash flow cannot be replicated in 2021 or thereafter. 2020 cannot be treated as a typical year for the purposes of income available for support in 2021 or business valuation based on past performance.
  2. The non-owner spouse who is desperate for spousal and child support may ask that the deferred payroll taxes, albeit a liability on the books, allows current cash flow to fund payment of reasonable support.
  3. If 2020 is a post-separation year for a divorcing couple the business owner will need the cooperation of the estranged spouse to file amended tax returns to get tax refunds for the pre-separation years. While the amended returns will trigger tax refunds, if the loss occurred post-separation, in this case during 2020, should the carryback loss during the marital years trigger a refund that belongs to the marital estate? It could be argued that the 2020 loss creates a refund that is post-separation and non-marital. On the other hand, the non-owner spouse will seek to share in the benefit of the refunds which are dependent on that person’s cooperation with filing amended returns.

Experienced family lawyers and forensic accountants (like our friends at Savran Benson of Bala Cynwyd, Pennsylvania) net income available for support (NIAS) calculations will be difficult to project in the future based on 2020 data. Will the NIAS for 2021 mirror 2020? Can 2019 be considered more typical after the upheaval of 2020? Will the business promptly return to 2019 circumstances?

In divorce cases where a business is valued, it is typically based in part on the economic performance for the past three to five years. The business valuation will consider normalized revenue based on typical income and expenses. Arguably very few businesses operated according to past norms in 2020, therefore can the 2020 books be considered typical? What adjustments are warranted?

Some business owners will argue the terrific year, for example manufacturing cardboard, in 2020 will never be repeated. Other business owners that suffered in 2020 will ask that the review to earlier stable years are inappropriate and therefore the business value should be modest for their struggling companies. Will litigation about a cash-strapped business owner be affordable by the divorcing couple considering the in-depth analysis required? Collecting the data from 2020 will be important and the insights of the attorney and forensic advisors will be critical.