Second Quarter 2018

Nebraska

By:  Stephen P. Murray

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 Nebraska, an employee who works primarily from home can receive workers compensation benefits if they are injured at home while performing a task related to their job duties.

Discussion: According to Nebraska Revised Statute 48-101, for an injury to be compensable, it must arise out of and in the course of the employee’s employment.  In Misek v. CNG Financial, 660 N.W.2d 495 (2003), the Supreme Court of Nebraska stated that an injury is said to arise “in the course of” the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.  The court in Parks v. Marsden Bldg. Maintenance, LLC, 811 N.W.2d 306 (2012), confirmed that the test to determine whether an act or conduct of an employee which is not a direct performance of the employee’s work “arises out of” his or her employment is whether the act is reasonably incident thereto, or is so substantial a deviation as to constitute a break in the employment which creates a formidable independent hazard.  The court went on to say that all acts reasonably necessary or incident to the performance of the work, including such matters of personal convenience and comfort, not in conflict with specific instructions, as an employee may normally be expected to indulge in, under the conditions of his or her work, are regarded as being within the scope of the employment.  Id.

What the court has laid out in the above cases helps formulate a baseline understanding for what a compensable accident looks like, however it does not address distinctively how this applies to remote employees.  Remote employees are becoming more and more common as both a means for employer’s to reduce overhead and as a way for allowing employees more freedom.  In practice, injuries sustained at home while an employee is engaged in job duties have always been treated as compensable injuries in Nebraska.  In fact, they have been to the point that litigated cases on the issue do not exist.  When the issue becomes more questionable however is when an employee is engaged in work-related job duties outside their traditional time of work.  This issue was addressed by the Nebraska Worker’s Compensation Court in 2013.

In Timothy Holtorf v. DISH Network, LLC, (DOC: 212 NO: 1888) (2013), an employee of DISH Network held a garage in his backyard which contained various parts and pieces used for his employment, including dishes and remotes.  The employee was carrying a box (received in the regular course of shipment from his employer) to his storage with the intent to store the box and grab other parts from the shed for the days’ work.  He would then stock his truck and proceed to the home of his customers.  While carrying the box he twisted his ankle on loos or broken concrete on the sidewalk leading to the shed itself.  This occurred while the employee was “off the clock” at the actual time of the event.  The Court concluded that the injury sustained was compensable because despite the employee not having actually commenced his travel when he sustained the injury, the event occurred as he was carrying a box delivered to his home by his employer to his storage shed.  Additionally, the Court noted that the employee was in the process of loading his van preparatory to the commencement of travel itself.  As such, the Court concluded that it was reasonably clear and not subject to any serious dispute but that the employee’s activities were for the benefit of his employer.

Practice TipA few key takeaways from Holtorf can be gleaned by the way the Court went about establishing compensability.  First, employers should be mindful that remote employees are eligible for workers compensation benefits just the same as employees that work in a business owned or leased by their employers.  As such, it would not be a sound strategy to mitigate compensable claims simply by increasing the ratio or remote employees compared to on-site employees.  Second, employers should clearly define job duties for employees that work at home so as to create a degree of separation between the employee’s job duties and their personal home life.  This can be quite challenging, but a sound job description may provide the evidence needed to prove to the Court that a certain activity, which caused an injury, is outside the course and scope of their employment.  Third, employers should have thorough policy guidelines which indicate clearly and distinctly what a remote employee is allowed to do throughout their work day and what an employee is not allowed to do.  For example, an employer may provide some protection by requiring all business equipment used by the remote employee to be stored in a single area of an employee’s home, thus reducing the risk of work-related injuries in other portions of the house.  This of course is much more difficult in practice, though it does provide an example of something an employer may want to do to reduce exposure for at-home injuries.