The Covid-19 pandemic has resulted in a dramatic increase in the number of employees who work remotely. According to Forbes, pre-pandemic, roughly five percent of full-time employees with office jobs worked primarily from home. According to projections, twenty- five percent of all professional jobs will be remote by the end of 2022. As such, employees working from home may be the new normal, with variation across occupations and industries. The increase in the number of remote employees has forced companies to revisit their telecommuting protocols, in addition to their risk management strategies to include remote workplace reviews, defining job duties to prevent claims or injuries arising from non-work related activities, and identifying specific business hours. The shift to remote work has also resulted in an increase in workers’ compensation claims filed by employees alleging work related injuries occurring at home.
In response to the various issues arising in connection with remote workers’ compensation claims, on June 24, 2022, Governor DeWine signed into law House Bill 447 (“H.B. 447”) amending Ohio Revised Code §4123.01 (C) to EXCLUDE from the definition of an “injury” any “(i)njury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home and that is separate and distinct from the location of the employer(.)” H.B. 447 does permit, however, an injury or disability sustained at home to be compensable under workers’ compensation if ALL of the following three factors are met:
- The employee’s injury or disability arises out of the employee’s employment;
- The employee’s injury or disability was caused by a special hazard of the employee’s employment activity; and
- The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.
Accordingly, H.B. 447 limits the compensability for work from home injuries. While the standard definition for “injury” requires the injury to occur “in the course of, and arising out of, the injured employee’s employment,” the work from home injury will only meet the statutory definition of an “injury” if it occurred “in the course of activity undertaken by the employee for the exclusive benefit of the employer” and was caused by a “special hazard” of the employee’s employment activity. The courts have defined a “special hazard” as a “risk, either distinctive in nature or quantitatively greater than the risk common to the public.”
H.B. 447 goes into effect on September 23, 2022.
Workers’ compensation claims are very fact specific and employers are encouraged to work with their legal counsel to thoroughly investigate claims filed by their remote employees to determine whether the statutory requirements have been met and to implement strategies to manage workers’ compensation risks specific to those employees. Employers should also implement practices that aim to limit workers’ compensation liability for home-based employees by creating a telecommuting policy which outline the employer’s expectations for employees who work from home and establish guidelines for a home office.