RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – THE PERILS OF REMOTE WORK AND BEING YOUR OWN BARTENDER
FROM MY BAR AT HOME:
With the Lobby Bar temporarily closed due to the ongoing COVID-19 pandemic, my nearest and dearest friends and colleagues met through a virtual happy hour to check in with one another and take the edge of off our collective anxiety. Left to fend as our own bartenders, my friends and I were enjoying drinks of varying quality. While I am not as adept at mixology as George, I was still sipping a decent version of my vice of choice, a Manhattan straight up with an extra cherry. 1
Not all of my friends had such a well-stocked bar. One of my gal pals, Beth Emhoff, was drinking a concoction she made from gin, Ovaltine and chocolate coconut ice cream, the only ingredients she had on hand. I probably would have just opted for gin in a cup, but “judge not lest ye be judged” I suppose.
My friends and I were lucky enough to be able to transition our jobs to work remotely (I with relative ease thanks to our firm’s adaptation to a paperless file management system several years ago). Our conversation shifted to the new challenges our change in work environment had created, from childcare and loud dogs to uncomfortable home office chairs and dining room areas re-purposed as office spaces.
Beth jumped in with her latest remote work mishap, “You guys, you won’t believe it! My assistant called me today to let me know that she hurt her foot and she thinks it is my firm’s responsibility. When she shifted to remote work a few weeks ago we sent her home with a scanner, a printer and a computer. Evidently she didn’t clear off the table she intended to use for work and she put her printer on top of a large stack of books. She told me that she was on her way to a quick bathroom break when she tripped over the printer cord, causing the haphazardly positioned printer to fall on her foot. She’s convinced her foot is broken. She says that she also has headaches from the stress of seeking out medical treatment during a pandemic. What a story!”
Holly Hustler, the other participant in our virtual happy hour and a prominent applicant’s attorney (everyone has to have friends), snickered at her response. “Sorry friend, but you should send that nice lady a claim form. And my card while you’re at it.”
Holly went on to describe that if an employer requires that an applicant work from home, their home becomes a second jobsite. She pointed to the California Court of Appeal Denial of Writ dated August 16, 1996 in the case of Detente Technology v. Workers Compensation Appeals Bd., Boehm & Assocs., 61 Cal. Comp. Cases 866. She said that in this case the applicant was not provided with an office or work space by the insured and thus it was reasoned that the applicant’s home became a satellite office of the insured’s company.
The defendant in Detente Technology had their Petition for Reconsideration denied by both the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeals Board (WCAB), after arguing unsuccessfully that the going and coming rule applied, as the applicant was injured in a single vehicle motorcycle accident traveling between their home office and defendant’s client’s office.
Holly also highlighted the April 3, 1995 Court of Appeal decision in Kidwell v. Workers’ Compensation Appeals Bd., 33 Cal. App. 4th 1130, in which a California Highway Patrol officer’s injury sustained while practicing at home for a physical fitness test was found to be job related and a compensable injury, annulling the Appeals Board decision.2
Beth interjected, “But she was on a personal break when she was injured. Certainly that should not be the firm’s responsibility?”
Holly gleefully reminded us that the “personal comfort doctrine” which provides for coverage during certain break activities has been applied to work performed from home. This doctrine is based on the premise that “the course of employment is not considered broken by certain acts relating to the personal comfort of the employee, as such acts are helpful to the employer in that they aid in efficient performance by the employee.” (SCIF v. Workers’ Compensation Appeals Bd. (Cardoza) (1967) 32 CCC 525, 527).
Holly added that this doctrine was applied to work performed at home in the panel decision filed on July 5, 2017 in Debora Tidwell v. Santa Clara Valley Transportation Authority, 2017 Cal. Wrk. Comp. P.D. LEXIS 325. In Tidwell the applicant sustained injury while transferring from their toilet to their wheelchair at their home during the work day. That injury was deemed industrial after it was found that the employer’s extension of permission to the applicant to work from home turned their home into their “work station.” The personal comfort doctrine was then applied to extend to the applicant’s bathroom break.
Defendant’s Writ of Review was denied by the Court of Appeal on November 1, 2017, after having their Petition for Reconsideration denied by both the WCJ and the Appeals Board, after arguing unsuccessfully the following:
(1) the employer did not require that applicant work from home; (2) applicant’s workspace is limited to the area “around her workstation;” (3) applicant was not providing work-related services at the time of her injury; (4) the personal comfort doctrine has never been applied in a published decision where the alleged injury occurred at home; and (5) public policy dictates that injury arising out of and in the course of employment must not be extended to remote work situations.
Holly was by now on cloud nine, cracking open another can of White Claw, so I saw this as an opportunity to pour some cold water on her argument. I pointed out to Beth and Holly that there are limits to the ability to claim home as a second jobsite.
In a panel decision published on June 25, 2018 in Edwin Raquedan v. Viola, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 343 one of our firm’s shareholders and managing attorney of our Ventura office, Chuck Maki, successfully defended against a death claim in which the applicant’s widow claimed that an accident sustained while returning home, where the applicant had gone for lunch, should be considered industrial because the employee had taken work home with him. The applicant’s attorney had attempted to argue that by taking work home, the employee had created the home as a second jobsite and thus circumvented the coming and going rule.
The applicant’s widow filed a Petition for Writ of Review, which was denied on September 12, 2018. In their denial of the writ, the Court of Appeal found that there was no evidence that the applicant was required to work from home, as the ability to work from home conferred no benefit upon the employer since the employee could have performed the same work from his office. Citing the March 1, 1978 Court of Appeal decision in Bramall v. Workers’ Comp. Appeals Bd., 78 Cal. App. 3d 151 it was emphasized that the “ . . . ‘circumstances of the employment—and not mere dictates of convenience to the employee’ must have required the work to be done at home.”
While these cases do not help Beth with her assistant, I explained to her that they can provide some relief to employers months from now whose employees may have found that they prefer to work from home as opposed to in the office. Unless the employer requires the injured worker to continue to perform their job from home, it may not be considered a second job site such that the going and coming rule would be overcome.
As our discourse on work over video chat proved to be a bummer (for Beth and I at least), we shifted gears and began our usual gossip and went back to making fun of Beth for her ridiculous cocktail.
All characters at my home bar are fictional and the storyline is simply a product of my vibrant imagination.
While Raquedan lacks the designation “significant panel decision,” Joe always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:
The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)
He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
Now that the initial rush to implement remote work has passed and everyone is settling into their respective roles, the tale of Beth’s assistant is a reminder that employers should take a moment to check in with their freshly remote employees to ensure the appropriateness of their work-from-home stations. Since it appears we will all be working remotely for some time, employers may find it worth their while to ensure that their employees’ work stations are safe and ergonomically sound.
The current push to remote work will likely result in longstanding changes to how remote work is approached. It is anticipated that many employees will continue to work from home even after the world is open for business once again. Employers who continue to require their employees to perform some work remotely could find themselves liable for motor vehicle accidents which occur while traveling between the two work locations.
I encourage everyone to have hope that things will return to the world as we once knew it and be prepared for what that means for workers’ compensation defense, and of course to wash their hands often.
As for me, in between being a full-time parent and an attorney, I’ll be making my own doubles for the time being. May George guide my hand.
1 Legend has it that the Manhattan was invented by New York City socialite, Ms. Jennie Jerome, aka Lady Randolph Churchill, in the mid-19th century at a party for the newly elected Governor of New York, Samuel J. Tilden, held at the estimable gentleman’s club called the Manhattan Club. Debatable perhaps because at the time Lady Randolph was in fact in England and very much pregnant with one Sir Winston Churchill, but I digress.
2 Joe’s trusty briefcase is on sabbatical at the moment, however we’re happy to send you a copy of Detente Technology, Kidwell, Tidwell and Raquedan and Bramall via email request.