Whether you call it teleworking, telecommuting, working from home / WFH (a digital communications acronym that gained popularity during Covid-19), mobile work, or remote work, the new normal for about a third of Americans involves working at home. That unfamiliar reality raises work and personal challenges for many of us, as well as legal issues for workers and employers. A key legal question involves workers’ compensation coverage for injuries of remote workers.
Generally, Virginia workers’ compensation covers injuries of remote workers that meet statutory requirements. But determining whether workers’ comp pays for a particular injury requires a detailed analysis. In many cases, securing compensation requires assistance from a workers’ compensation attorney, because of the unique character of remote worker injuries.
Generally, Virginia employers must have workers’ comp insurance (or be self-insured, which requires state approval) if they regularly employ three or more part-time or full-time employees, including subcontractors. Since coverage is mandatory, with no exceptions or waivers, the law requires most employers in the state to have coverage.
If the law requires your employer to have coverage but your employer doesn’t have it, you still may be able to receive workers’ compensation for a work-related injury. If you suffer a work injury and find yourself in that situation, you should talk with a workers’ compensation attorney.
Workers’ compensation insurance covers employees of an employer, as defined in the Virginia Workers' Compensation Act, Va. Code Ann. § 65.2-101. The statutory definition is complex.
Generally, the term employee includes not only full-time workers, but also part-time, temporary, immigrant, and seasonal workers, as well as trainees, minors, and working family members. Independent contractors usually are not employees for purposes of workers’ compensation.
In some instances, your employer may require you to sign an “Independent Contractor Agreement” stating that you are an independent contractor. The signing of these agreements is generally neither binding nor determinative on whether or not you are in fact an independent contractor under Virginia law. Most often, employers require employees to sign these agreements to discourage employees injured at work from filing workers’ compensation claims.
You may still be entitled to workers’ compensation benefits even if you signed one of these agreements. If you signed an independent contractor agreement with your employer and are injured at work, it is essential that you contact a Virginia workers’ compensation lawyer to determine if you are entitled to workers’ compensation benefits.
In workers’ compensation law, the term remote worker covers anyone who works from home all the time or only sometimes, including during Covid-19 business restrictions. It also covers any worker who performs a job at any location outside the employer’s physical place of business. In other words, the remote location may be the worker’s home, or it may be somewhere else.
Virginia workers’ compensation covers remote workers. Whether a particular worker can recover for a specific injury depends on whether the injury and circumstances of occurrence meet the legal requirements for workers’ comp coverage under state law.
Determining whether workers' compensation covers a particular injury is the most complicated aspect of evaluating a remote worker’s injury. The law requires that an injury arise out of the worker’s employment and during the course of performing the assigned job.
The employee generally has the burden of providing evidence to demonstrate that an injury is work-related. Because individuals working from home are often not in a situation where they are observed by others, proving that an injury occurred during performance of the worker’s responsibilities at home can be challenging.
In a work-from-home situation, often the only evidence of the circumstances surrounding the incident or injury is the worker’s own testimony. Credibility can be an issue, since frequently there is no corroborating evidence.
In addition, the ease with which home workers can mix personal and work responsibilities often makes it difficult to ascertain the precise context of an injury. Even if an accident happened during normal work hours, it isn’t covered if the worker received the injury while involved in any type of personal activity.
An employer is responsible for providing a safe work environment for remote workers in the same way that the employer must provide a safe environment at a place of business. In recognition of that responsibility, an increasing number of employers adopt specific policies for remote workers (often on recommendation of their legal counsel) that include guidance on setting up and maintaining a safe workspace at home.
An employer policy also may define work hours and duties and explain expectations for remote workers. A policy may include time management and reporting practices, work area requirements, and other details that provide guidance to the remote worker about what is expected during work hours.
If your employer has a remote work policy, it is extremely important to abide by rules and requirements established in the policy. Willful disregard of an employer’s policy and safety practices may be a valid defense to a workers' compensation claim for a remote worker injury.
Virginia law currently does not include definitive guidance in statutes or court decisions regarding employer liability for remote worker injuries, beyond the general requirements contained in the Workers' Compensation Act. That likely will change in the future because of the vast number of workers required to work at home during Covid-19, and because indications are that teleworking as a standard practice is likely to increase in the wake of the coronavirus experience. In the meantime, remote worker cases will be decided on a case-by-case basis by applying the general rules established by state law.
If a person qualifies as an employee under workers' compensation law, whether the law provides compensation for a specific injury depends entirely on evaluating the nature of the injury and the circumstances under which it occurred. Conducting that analysis is especially difficult for injuries to remote workers, because of the unique situation in which they perform their jobs.
If you sustain an injury while working at home, your best strategy is to talk with a knowledgeable workers' compensation attorney before you pursue a claim. Your attorney will discuss the details about your injury and how it occurred, explain how the law applies, and assist you in filing a claim if you decide to proceed. In the event your claim is denied, your lawyer will be prepared to represent you in pursuing the claim.
If you received an injury while working at home — or any other type of work-related injury — our Virginia workers' compensation attorneys at Renfro & Renfro are here to help. We welcome you to contact us for a free consultation.