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Injuries at Home or Due to the Home Office

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Apart from liability for injury or death resulting from industrial exposure to the coronavirus, employers could be liable for other injuries related to the COVID-19 crisis.

As discussed previously, state and federal measures called for social distancing, and a statewide stay-at-home order was issued in order to slow the spread of the virus. Many employees could not continue to perform their regular job duties. Many employers were forced to shut down and lay off their employees.

Many employers still require or allow their employees to work from home. Arguably, any requirement to work at home actually was actually imposed by the government during the lockdown - not the employer - but allowing this arrangement still opens an employer to liability for injuries workers sustain in their homes or while they commute from home to a job site.

Injuries While Working from Home

As discussed in "Sullivan on Comp" Section 5.59 Personal Comfort Doctrine, under the personal comfort doctrine, an injury at work might be compensable even though it occurred while the employee was engaged in an activity necessary only for personal comfort, convenience or welfare. An employee is not required to be performing a job-related activity in order for the injury to be compensable. This is true even if the employee did not have the coronavirus –– it would be an injury on work premises, which is enough.

The California Supreme Court explained: "The rule is broad enough to include the majority of an employee's acts upon the employer's premises, such as eating lunch, getting a drink of water, smoking tobacco where not forbidden by the employer, attending to the wants of nature, changing to or from working clothes, and many others.”[1]

The Supreme Court has explained that the personal convenience exception is not limited to acts performed on the employer's premises.[2] "Acts of 'personal convenience' are within the course of employment if they are 'reasonably contemplated by the employment.'"[3] Moreover, issues as to whether an act is reasonably contemplated by the employment are resolved in favor of the employee.[4] This includes just about anything an employee does on work premises, and extensive case law exists regarding the compensability of injuries sustained in the parking lot, just outside of work and during recreational activities and breaks. Such considerations also might apply if a home is a second workplace and a claim is made. (See "Sullivan on Comp" Chapter 5 Injury.)

First, it must be established that a home indeed is a second workplace. If an employee is laid off or furloughed, or just doesn't work at home, of course injuries occurring there would not be compensable. As discussed in-depth in "Sullivan on Comp" Section 5.50 Home as Second Job Site, employees who regularly drive to and from work generally haven't had much luck claiming the home as a second workplace when they decide to do some of their work at home. The Supreme Court has expressly declined to create a "white-collar exception" to the going and coming rule[5]. A home will not be considered a second workplace unless its use impliedly or expressly is required by the employer –– it is not enough that the employee decides to work at home for his or her convenience. With that said, because so many workers have been sent home to work during the coronavirus outbreak, there isn't much doubt that home is not just a second workplace, but the primary one.

In one case, the appeals board held that an applicant who fell in the bathroom while working at home was covered by the personal comfort doctrine. She was in a wheelchair due to a nonindustrial disability, and her employer had granted an accommodation allowing her to work from home. She fell transferring into her wheelchair after using the toilet during work hours.[6]

The appeals board found that the applicant's home was her workplace, as she had been given permission to work at home. It held that the personal comfort doctrine applied to her injury. It concluded that she was attending to her most basic personal and incidental need during the workday, so her injury in the bathroom was compensable.[7]

Such situations create difficulties for employers trying to determine whether an injury at home is compensable. When an employee is working on the employer's premises, an employer can monitor an employee's activities. But when an employee is working at home, it's difficult, if not impossible, for an employer to determine when an injury was sustained, or what the employee was doing at the time of injury. In order to comply with the complex and strict wage-and-hour laws in California, some employers use computer access to clock people in and out.

A lot will depend on the employee's own reporting. A certain degree of trust, of course, is necessary for employers to allow an employee to work from home, and they'll need to trust employees who claim they were injured at home. Employees must be careful not to lose that trust.

Going to and from Work

Many employees are compelled to work at home because of the coronavirus. Some might need to return to the workplace for various reasons. They might need to retrieve documents or materials to bring home; they might have some job duties that can be performed only at the workplace.

The going and coming rule generally bars injuries traveling to and from work. An employee who is required to work from home, however, might be able to claim injuries while traveling to and from work.

Very early on, the California Supreme Court explained that an employee going to and from the place of employment is not rendering any service. That occurs only when he or she arrives at the place of employment.[8]

Nevertheless, the courts soon realized that the going and coming rule did not apply universally.[9] The courts recognized the tension between the employer's desire to be immune from liability for an employee's injury or death that occurs in the everyday transit from home to work, and the employee's desire to be protected from loss by injury or death that occurs in nonroutine transit.[10]

Although the going and coming rule remains the law in California, it is subject to numerous exceptions, and neither the rule nor the exceptions are subject to automatic application. Each case must be judged on its own facts.[11] The going and coming rule and its exceptions are discussed in "Sullivan on Comp" Chapter 5.

One of the exceptions is when the employee's home functions as a second job site (see "Sullivan on Comp" Section 5.50 Home as Second Job Site). When the employer requires work to be performed in the employee's home, injuries during a commute to and from the regular work premises are not barred by the going and coming rule. The employee’s home becomes a second job site, and the employee is traveling between two work sites during his or her commute.

For example, in Bramall v. Workers' Comp. Appeals Bd.,[12] the Court of Appeal held that a legal secretary's injury in a car accident while driving home from work was not barred by the going and coming rule. The court explained, "Where the home is claimed as a second jobsite, the 'circumstances of the employment -- and not mere dictates of convenience to the employee' must have required the work to be done at home."[13] It added that the regularity of work performed at home is an important factor to consider in determining whether the home is a second workplace.[14]

In Bramall, the secretary was taking home two depositions in Spanish to translate into English. The court found that the record established not only a requirement to labor beyond normal working hours but an implied requirement to work at home. It concluded that the translation work at home was the normal practice approved by the employer, so the employee's injury was compensable.[15]

Subsequently, in Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (Smythe),[16] the California Supreme Court held that unless the employer requires the employee to labor at home as a condition of the employment, the fact that an employee regularly works there does not transform the home into a second job site for purposes of the going and coming rule. In that case, a college instructor was killed while driving his car home from work. The Supreme Court found that the evidence established that the employee worked at home by choice, not because of the dictates of the employer. So, it concluded that the claim was barred by the going and coming rule.[17]

The key to compensability is whether an employee is asked to work from home by the employer. In the present environment, many employees are being sent home to work by their employers because of the coronavirus. Claims made by these workers probably will fall under Bramall, not Smythe. Even if the requirement to work from home is only temporary, it will be difficult for employers to argue that the home is not a second job site.

See Also


  1. Fireman’s Fund Indem. Co. v. Industrial Acci. Com. (Elliott) (1952) 39 Cal. 2d 529, 532-533.
  2. California Casualty Indem. Exchange v. Industrial Acci. Com. (Cooper) (1943) 21 Cal. 2d 751, 758; Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal. 3d 559, 568.
  3. Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal. 3d 559, 568.
  4. Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal. 3d 559, 568.
  5. Wilson v. WCAB, (1976) 41 Cal. Comp. Cases 76.
  6. Santa Clara Valley Transportation Authority v. Workers' Compensation Appeals Board (Tidwell) (2017) 82 Cal. Comp. Cases 1514 (writ denied).
  7. Santa Clara Valley Transport. Authority v. WCAB (Tidwell) (2017) 82 Cal.Comp.Cases 1514, 1515-1517 (writ denied).
  8. Ocean Acci. & Guarantee Co. v. Industrial Acci. Com. (1916) 173 Cal. 313, 322.
  9. Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal. 3d 150, 154.
  10. Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal. 3d 150, 156-157.
  11. Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal. 3d 559, 565.
  12. (1978) 78 Cal. App. 3d 151.
  13. Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal. App. 3d 151, 158.
  14. Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal. App. 3d 151, 159.
  15. Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal. App. 3d 151, 159.
  16. (1985) 40 Cal. 3d 345.
  17. Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (Smythe) (1985) 40 Cal. 3d 345, 357.

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