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Remote Work and COVID-19

Written by: Daniel Richardson, Esq. and Peter Skaliy, Esq.

Before COVID-19, many companies were experimenting with remote work. It has now become a widespread reality. This creates unique worker’s compensation risks, even as it may decrease the likelihood of some of the more serious or even catastrophic claims. An employee’s home environment is less subject to the control of the employer, and it may be less ergonomically friendly. Employers should educate their employees on the importance of proper ergonomics and give instructions on how to set up a proper workstation at home. Employees should be given fresh instruction on the importance of quickly reporting any injury in this new environment, as the cost of defending a late-reported claim is generally going to be higher, and the employee’s recovery may get drawn out.

Employers should consider whether to provide employees with additional requested equipment at home, which will be a case-by-case determination. For instance, if the employer is considering providing the employee a chair at home for ergonomic purposes, who will set it up in the home? Will someone train the employee on how to adjust it to fit the workspace? What will be done with it when the employee is no longer working remotely? The expense of the item should be weighed against the likelihood that failure to provide the item will increase the chances of an injury due to its absence. Even as many corporations are considering phased re-entry to the workplace, these questions remain important. While hoping for the best, employers should consider the possibility of a second wave of the virus at some point later in the year, with some of the same calculations of risk again counseling the prudence or necessity of remote work.

In Georgia, if an employee has been required by government order or by an employer to work at home, and they contract COVID-19 from a home-based source, would it then become a compensable work accident? Under OCGA 34-9-1(4), an injury shall not include a disease in any form except where it results naturally and unavoidably from an accident. Diseases can be compensable under the Occupational Disease section of the Georgia Workers Compensation Act at OCGA 34-9-280, which has five requirements that a claimant must prove: (A) a direct causal connection between the conditions under which the work is performed and the disease; (B) that the disease followed as a natural incident of exposure by reason of the employment; (C) that the disease is not of a character to which the employee may have substantial exposure outside of employment; (D) that the disease is not an ordinary disease of life to which the general public is exposed; (E) that the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence. Given how COVID-19 has spread, an employee would be unable to prove that it is not an ordinary disease of life to which the general public is exposed. Additionally, if the employee contracts it at home, he or she would likely be unable to prove that the disease is not of a character to which he or she may have substantial exposure outside of employment. Though teleworking breaks down many of the barriers between home and work, at least some of their time at home would remain outside the purview of their employment, and thus it is likely that they would have been exposed anyway by virtue of living at home. If COVID-19 is in the employee’s home, they were going to be exposed anyway, regardless of a shelter-in-place order or an employer-directive to work from home.

It seems highly unlikely that an employee could succeed in showing compensability under OCGA 34-9-280 under this scenario, which leaves only the possibility of showing transmission of the disease where it results naturally and unavoidably from an accident. Of course, most often a disease is going to be transmitted through some type of general exposure, but compensability apart from OCGA 34-9-280 would require something like an accidental needle stick, or an accidental rupture in a healthcare worker’s gear designed to protect against exposure. It is theoretically possible, but difficult to imagine, what circumstances in the home might lead to a compensable accident. In addition to the ergonomic considerations in setting up a proper workplace, we recommend requiring employees to have a workstation set apart from other people, if possible. We know that for some employees, their homes will not allow this. Nevertheless, employees should be instructed to regularly sanitize and disinfect their workplace, and to try to conduct work only in this designated area. They should be instructed to follow all CDC guidelines. Strict compliance with these guidelines probably cannot be enforced remotely. However, we suggest having the employee at the end of the week fill out a checklist affirming that they have followed the required practices. From a health perspective, this should decrease their likelihood of contracting the virus or experiencing a work injury. From a defense perspective, it would decrease the likelihood that the employee would be able to prove at a hearing that the virus was contracted naturally and unavoidably from an accident while working, instead of at some other time. The employee would be attempting to establish facts at a hearing contrary to previous representations made to the employer regarding their compliance with best practices.

Given the low likelihood of employees proving their contraction of COVID-19 is a compensable work accident under the current statutes, some states have reacted by expanding coverage. For instance, the Minnesota legislature expanded coverage for first responders, healthcare workers and daycare workers up until May 1, 2020. Despite the obvious sympathy for people who may contract this disease, it is not clear that all attempts to expand coverage are, in fact, lawful. For instance, the Illinois Workers Compensation Commission recently issued an emergency amendment creating a rebuttable presumption for front-line workers who contract COVID-19. That Commission was then promptly sued for exceeding their statutorily granted authority, and the argument is that they have used their rule-making power to effect a substantive change in the law, which should be reserved for the legislature. On April 27, 2020, this Commission reversed the emergency amendment, though Illinois may follow in the footsteps of some other states whose governor’s have expanded workers compensation coverage by executive order. In Georgia, there have been no substantive changes to the law made by the legislature or by the State Board. Instead, the State Board has adjusted when and how cases are tried, first by continuing hearings and mediations, and now by putting in place procedures to try some hearings remotely if the parties agree. If you have any questions related to how COVID-19 affects the remote work environment, or risks associated with bringing your employees back into work, feel free to contact us.