As our society emerges from the constraints of the COVID-19 pandemic, employers must confront the increased demand for flexible, remote and hybrid employment environments and the corresponding impact on their operations.  During the pandemic, state and federal regulations directed much of the workforce to work from home.  Employers and employees did what they needed to do to remain safe and functional.  Most of the regulations that structured our personal and professional lives during the pandemic have lapsed or been rescinded.  Life and work slowly return to a new normal.  Many employees want to continue to work from home or to at least work under a hybrid or flexible schedule.  In consideration of these demands, without the guidance of the pandemic generated directives, employers must be cognizant of the existing state and federal laws that govern the workplace including the flexible, remote and hybrid work environment.  One primary example are the state laws governing Workers’ Compensation.

Generally, all employers are required to maintain workers’ compensation insurance to protect employees in the event of a work-related injury or illness. Workers’ compensation laws vary from state to state.  Employers in multiple states must remain cognizant of the controlling state law and evaluate exposure to liability on a case-by-case basis to ensure proper compliance.  In most states, there are specific provisions that extend this coverage to employees engaging in remote and hybrid employment environments.  

Typically, if an injury or illness occurs in the course and scope of employment, it is compensable under the prevailing state statue.  What constitutes a work-injury or the work environment can be difficult to define in a remote, home or hybrid work environment.  Employers seeking to provide remote and hybrid alternatives for employees must take care to properly define duties, hours and what might constitute the employment day and environment.  In addition, employers should endeavor to work with their insurance provider to carefully define changes in the workplace or schedule.  Employees now working remotely or from home should be identified to confirm appropriate coverage. 

Under the Pennsylvania Workers’ Compensation Act (WCA), covered employers must provide workers’ compensation benefits to employees who suffer an injury or illness in the course of employment, without regard to negligence. 77 P.S. § 431.  While the definition has remained the same, the level of scrutiny afforded the “in the course of employment” provision has increased as the shift to a remote and hybrid work environment has advanced.

The Pennsylvania Workers’ Compensation Act includes injuries that are sustained outside the confines of an office if the employee "is actually engaged in the furtherance of the business or affairs of the employer.” Section 301(c) of the Act, 77 P.S. § 411(1).  The employer and its carrier are obligated to consider the evidence as a whole and determine whether the employee’s injury should be accepted or denied.  They cannot simply deny the claim as a result of the employer’s lack of control or daily oversight of the employee’s work environment.  A proactive approach to define the scope of the position, the work area and coverage are critical.

Similarly, in New Jersey, employees who work remotely or telecommute have the same right to workers' compensation benefits as those who work in person.  The New Jersey Workers' Compensation Act provides benefits to employees with work-related injuries or illnesses that "arise out of and in the course of work."  Like Pennsylvania, an off-premises work environment will significantly complicate evaluation and analysis of compensability.

In New York, the Workers' Compensation Law (WCL) has a “home office exception.”  This standard has evolved over the past fifty (50) years to allow recovery under the WCL for work-related injuries that occur at home.  Before COVID-19, the scope of coverage for injuries to employees working from home was often limited, in recognition of the distinctive nature of the at-home work environment.  In light of the development of remote work, employers and employees can only expect further scrutinization between work-related tasks and personal tasks at the time the alleged injury occurred.

In Georgia, an employee is eligible for workers’ compensation benefits for any injury that occurs during the course and scope of employment, including remote workers.  The broad application of benefits does not trigger the greater level of scrutiny between work-related and non-work-related activities surrounding the injury, evident in other jurisdictions.

Proactive management, including remote and hybrid employment policies, is recommended for businesses with operations that allow for such flexibility.  Health, safety, and productivity are the cornerstones of forming and implementing such a policy.  Employers should also consider the eligibility of employees for remote and hybrid work and the potential impacts on scheduling and communication.

Our Employment Law Group is available to answer questions and assist with the complexities employers are currently facing in navigating the evolution of the new order of the remote and hybrid employment environment.  Please contact Caitlin A. Donahue, Esq. at  cadonahue@c-wlaw.com or 1-888-488-2638.

DISCLAIMER

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C., or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.