Special Alert—COVID-19 and Work-from-Home Claims in Delaware
In Delaware, an individual injured at home may be entitled to workers’ compensation benefits. An employee is entitled to receive these benefits “for injuries or death ‘arising out of and in the course of employment,’ but only ‘while the employee is engaged in, on or about the premises where the employee’s services are being performed, which are occupied by, or under the control of, the employer (the employee’s presence being required by the nature of the employee’s employment)’.” See Stevens v. State, 802 A.2d 939, 944-945 (Del. Super. Ct. 2002) (citing Del. Code Ann. Title. 19, §§ 2301(15), 2304). “The phrase ‘in the course of employment’ refers to time, place and circumstances of the injury.” “Questions relating to the course and scope of employment are highly factual and must be resolved under a totality of the circumstances test.”
In Kay Cullen v. Discover Bank/Morgan Stanley Dean Witter (IAB # 1270620), the Industrial Accident Board addressed the course and scope issue for an individual who was injured while working from home. During her workday, she received breaks. During one of her breaks, she went to let her dogs outside and have a cigarette. When she went outside, she missed a step, fell and broke her ankle in two places. She testified that her purpose in going out the door and down the steps was to smoke a cigarette, not to walk her dogs.
The employer argued that she was outside the course and scope of her employment at the time she was injured because she fell outside of her home office area while on a break. The employer also argued the activities she engaged in were not acts of personal comfort, thus taking her outside the scope of employment.
The Board noted that smoking a cigarette and getting some fresh air are clearly acts of personal comfort, which are incidental to employment and do not take the claimant outside the course of employment. See Tickles v. PNC Bank, 703 A.2d 633, 637 (Del. 1977); Rose v. Cadillac Fairview Shopping Center Properties (Delaware) Inc., 668 A.2d 782, 789 (Del. Super. Ct. 1995).
The Board next determined whether the claimant took her break away from the employer’s premises, thereby invoking the going and coming rule, which would prevent her from receiving compensation for her injury. An employer’s “premises” has been defined to include “the entire area devoted by the employer to the industry with which the employee is associated.” Stevens, 802 A.2d at 946.
In this case, the claimant chose to take her break by smoking outside on the patio behind her house, an area that was still on her property. There was no evidence presented that she exited the home with the intention of leaving her property. Considering the totality of the circumstances, the Board found the claimant was engaged in an activity of personal comfort on the employer’s premises at the time of the accident and, therefore, was within the course and scope of employment when she was injured. They held the going and coming rule did not apply given the circumstances of this case, and benefits were awarded.
When evaluating a claim for an injury occurring in an employee’s home, you must carefully review the facts of how the injury occurred and what the employee was doing at the time of the injury. If the employee can be considered to be engaged in an activity that is for his or her own personal comfort, even if not engaged in work at the time, the injury will likely be found compensable. Even if the employee is at home, but doing something for work, the injury will likely be found compensable. In any such situation, a very detailed recorded statement should be obtained from the employee.
In conclusion, a detailed, factual investigation must be completed to make a determination as to the compensability of an injury occurring while an employee is working at home.
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