With the advent of the Internet and high speed desktop computers, telecommuting is no longer the province of only the few. Instead, telecommuting is becoming more common as either the sole method of performing one’s job or a part time arrangement in which the telecommuter also keeps office hours at the company’s place of business. As the telecommuter is still an employee, he or she is subject to injury and would likewise be covered by the Workers’ Compensation Act. The Official Code of Georgia Annotated makes no distinction between those employees working from home and those working from the employer’s fixed location. In addition, the existing case law was litigated and developed at a time before telecommuting was possible or conceived. The result, unfortunately, is that the existing case law will likely be utilized in deciding future cases involving issues of compensability.
As with most other workers’ compensation cases, telecommuting cases will be decided on questions of credibility and proof. The employee will always have to establish that his injuries arose out of and in the course of his employment. The "arising out of" portion of the employee’s burden of proof requires evidence of what the employee was doing at the time of the injury. The "in the course of" portion of the employee’s burden of proof applies to when the injury happened. The employee must show that he was "on the clock" in order to satisfy the "in the course of" portion of his burden of proof. He must further show that he was performing some act beneficial to his employer when the injury occurred in order for the incident to be compensable. There are, of course, injuries which even though incurred in the course of his employment while performing some task beneficial to the employer, may not be compensable. Examples of such injuries would include an attack by a third person against the employee for reasons personal to the employee (O.C.G.A. § 34-9-1(4)) and willful misconduct by intoxication (O.C.G.A. § 34-9-17).
One of the advantages to having employment duties conducted at a fixed location is that an injury which does not occur at that location is not compensable. The general rule in the State of Georgia is that injuries incurred while going to or coming from work are not compensable. Wilcox v. Shephard Lumber Corp. 80 Ga. App. 71, 55 S.E.2d 382 (1949). As with all other legal standards, there are exceptions to this as well. Where the employer has provided transportation to the employee, reimburses the employee for transportation or the employee is on call at the time of an incident, compensability may, under certain circumstances be established.
For the telecommuter, however, the "going to and coming from" rule would not seem to apply. Instead, the employee’s place of employment becomes his own home, and the scope of his or her employment may be broadened. For example, in the instance of an employee whose work time is split between telecommuting and performance of work duties at his employer’s fixed location, injuries occurring during the commute to his employer’s fixed location may be compensable. For example, in West Point Pepperell, Inc. v. McIntire, 150 Ga. App. 728, 358 S.E.2d 530 (1979), an employee was struck by a car while crossing a public street from one premises owned by his employer to another owned by his employer. That injury was found to be compensable. While the facts are dramatically different than from a telecommuting employee, the argument can and likely will be made that the employee was traveling from one employment premises to another. Until the Georgia General Assembly announces some policy or decision on telecommuting, the question remains an open one. Until such a policy decision is made, we would recommend that an injury occurring between a home workplace and the employer’s office be treated as an injury going to and from work and thus, be denied.
While an employee must prove that he was engaged in some act beneficial to his employer at the time an injury occurred for that injury to be compensable, there is an exception for injuries occurring to an employee while engaging in an act to "minister to his personal comfort." Examples of such personal comfort activities are eating, drinking, going to the bathroom or attempting to get warm. Georgia has long recognized that such acts of personal comfort do not remove the employee from his employment duties and his injuries in this context are generally held to be compensable. For example, in Rampley v. Travelers Ins. Co., 143 Ga. App. 612, 239 S.E.2d 183 (1977), the Georgia Court of Appeals held that an employee was eligible for workers’ compensation benefits when she slipped and fell on a bathroom floor while on a an unscheduled break. The courts have recognized that injuries occurring during regularly scheduled breaks and lunch breaks remove the employee from the course and scope of his employment if the employee is free to engage in whatever activity, including leaving the employer’s premises. Injuries which occur on regularly scheduled breaks are not held to be compensable. The nature of work by telecommuting is necessarily different from factory work in that there are few, if any, guidelines as to an employee’s work hours or regularly scheduled breaks. The question that arises is whether an injury occurring to an employee in his own home while ministering to his personal comfort would be compensable. Once again, there is no reported case law on this question in Georgia. However, since workers’ the exclusive remedy provision of the Georgia Workers’ Compensation Act represents a trade-off in that the employer is insulated from direct common law tort liability from an employee in exchange for providing workers’ compensation benefits, the recognition of injuries incurred from "personal comfort" makes sense. For example, Mrs. Rampley was injured when she fell in the employer’s bathroom. Without the exclusive remedy provision at O.C.G.A. § 34-9-11, the employer could possibly have faced liability for Mrs. Rampley’s slip and fall in the employer’s bathroom. This logical extension does not, however, apply to an employee’s own home. The employer would not control those premises and would not, therefore, have any potential tort liability. Once again, until such time as the Georgia courts have made some pronouncement on this question, we would not recommend acceptance of any claim occurring to an employee while at home and while ministering to an act of personal comfort.
Most of the established case law for injuries occurring to employees off of their employers’ premises relates to traveling salespeople. The courts of Georgia have uniformly held that such an employee is given wider latitude as to what constitutes "in the course of" his employment. For example, an injury to a traveling employee in a hotel can be held compensable under the doctrine of "continuous employment." The Georgia Court of Appeals recognized the doctrine of continuous employment in USF&G v. Navarre 147 Ga. App. 302, 248 S.E.2d 562 (1978). The Court reasoned that since a traveling employee is required to be away from his home, hazards occurred during that trip away from home are encountered as a consequence of his travel and, by extension, his employment. Those injuries are generally held to be compensable. That is not to say, however, that even a "continuous" employee cannot deviate from his employment. Examples of such deviation are excessive consumption of alcohol, pleasure trips and the like. Given that the Georgia courts have focused on the requirement that an employee be away from home in order to be considered in "continuous" employment, this sort of analysis should not apply to telecommuting employees. The employer/insurer should require than an employee show that he was actively engaged in something benefiting his employer at the time of the injury before it is accepted as compensable.
Realistically speaking, the most likely scenario for an employment related injury for a telecommuter would be in the repetitive trauma type conditions such as carpal tunnel syndrome or DeQuervain’s syndrome. By and large, questions of compensability in those cases hinge largely upon the medical evidence. In its defense, the employer should make all efforts to establish that the employee’s condition is more than likely a result of the employee’s non-work-related activities such as "surfing the Internet."
Without established case law, employer/insurers are forced to rely upon strained analogies to situations which, in all fairness, should have no application. The employers should require strict proof from its telecommuting employees as to exactly how, why and when an injury occurred before any such injury should be accepted as compensable. The employer should also take great pains to have the proper procedures in place for reporting of injuries and control of medical. The telecommuting employee should be provided with a copy of the employer’s panel of physicians and be appropriately apprised of their rights and responsibilities for medical treatment. Also, telecommuting employees should be advised to immediately report an injuries to the appropriate person within the employer’s company. Only in this fashion can the employer attempt to utilize the drug or alcohol testing provided in O.C.G.A. § 34-9-17.
"Skedsvold & White
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