Second Quarter 2018
By: Ryan T. Locke
Question: If an employee (“telecommuter”) who works primarily from home is injured while performing a task related to his or her job duties, is the injury compensable even though the event occurred in the employee’s home?
Short Answer: Yes, in Illinois, injuries sustained by a telecommuter employee while performing a task related to his or her job duties in the home are likely compensable.
Discussion: For an accidental injury to be compensable under the Act, it is necessary that it was sustained “in the course of” the petitioner’s employment. R.J. Reynolds Tobacco Co. v Industrial Com’n, 478 N.E.2d 901, 133 Ill.App.3d 322 (1985). Generally, employees who have fixed hours and fixed places of work are in the course of their employment at such times and places. Illinois Workers’ Compensation Practice §4.2, Illinois Institute for Continuing Legal Education (2015). However, when an employee is a telecommuter, the lines between work and home and personal and business are seemingly blurred. There are two arguments for compensability of an injury sustained by a telecommuter while performing a task related to his/ her job duties.
First, for an injury occurring off of an employer premises to be compensable, the petitioner must prove (1) the employee’s presence was required in the performance of his or her duties, and (2) the employee is thereby exposed to a risk common to the general public but to a degree greater than other persons. Bommarito v. Indus. Comm’n, 82 Ill. 2d 191, 412 N.E.2d 548 (1980). In R.J. Reynolds Tobacco Co., 133 Ill.App.3d 322 (1985), 478 N.E.2d 901, petitioner was an area sales representative. As part of his job, he set up retail display racks in different territories. Id. Occasionally, the petitioner would use his own power tools at home to cut and drill wood, metal, and other materials for customizing display racks for the company’s products. On the day of petitioner’s injury, petitioner left his office early to spend time in his home workshop to prepare materials the company wanted installed the next day. Id. While en route home, his car was struck in the rear by another automobile. The Illinois Appellate Court ruled the Commission’s finding that petitioner’s injury was compensable was not against the manifest weight of the evidence. The court noted several factors in support of their ruling including the fact the petitioner was in a company vehicle and was not provided the requisite tools needed to fulfil his job duties.
Second, for purposes of workers compensation, a telecommuter’s home may be considered part of the employer’s premises. For example, the Tennessee Supreme Court in Wait v Travelers Indem. Co. of Illinois, 240 S.W.3d 220 (Tenn. 2007), found an employee who telecommuted from home was injured in the course of her employment where she was assaulted by a neighbor while preparing lunch in her kitchen.. The Court reasoned, “… the plaintiff’s kitchen was comparable to the kitchens and break rooms that employers routinely provide at traditional work site. Moreover, the [employer] was aware of and implicitly approved of the plaintiff’s work site.” Id. While Tennessee case law is not binding in Illinois, it is possible an Illinois court may be persuaded by the court’s reasoning in Wait. Already, there exists a long line of precedent in Illinois extending the employer’s premise outside of work when the employer exercises even minimal control over the area. In Litchfield Healthcare Ctr. v. Indus. Comm’n, 349 Ill. App. 3d 486, 812 N.E.2d 401 (2004), the court held an injury sustained by an employee in a parking lot “suggested” by the employer to be compensable. In Schwartz v. Indus. Comm’n, 379 Ill. 139, 39 N.E.2d 980 (1942), the court held where an employee was on call even when eating at a restaurant off premises, the employee was in the course of employment when he suffered fatal food poisoning.
Practice Tip: The blurred line between work and home may complicate defending against a telecommuter’s position that the telecommuter was injured in the course of employment. Therefore, it is important the employer create clearly established expectations of a telecommuter employee to delineate home life from work life as best as the employer can:
- Create strict guidelines regarding the employees’ schedule and duties. For example, clearly establish rules with to how many hours a week the employee may work and during what times of the day employee may work;
- Require the employee to dedicate a specific part of their home as a workspace;
- Inspect the dedicated workspace to ensure it meets the requisite safety standards; and
- Conduct a detailed investigation of any reported accidents. While it may be difficult to show any injury sustained by a telecommuter was not in the course of his or her employment, Petitioners still have the burden of proof to show the accident arose out of his or her employment. A Petitioner will be barred from recovering compensation for injuries where the conduct related to the accident was to the personal benefit of the Petitioner rather than to the benefit of the employer.