Oregon Employee Injured While Working from Home? Best Practices to Determine Compensability

With the onset of COVID-19 and statewide stay-at-home orders, a high percentage of today’s workforce is operating from home, or in some variation of remote setup. Even as employees begin to return to a more traditional work setting, it is reasonable to anticipate that the pandemic-related response will have long-term effects on where and how some employers allow their employees to work. So, with the rise in remote workers will likely come a rise in remote workplace injuries. How do you respond?

In Oregon the general rule is injuries occurring “in the course of” and “arising out of” employment are compensable. That remains the case for injuries occurring remotely, if the worker is within the course and scope of his employment when the injury occurs. “Course and scope” cases are extremely fact-sensitive, and the ALJ/Board/Court of Appeals’ determination in a particular case will likely hinge almost entirely on the facts of that particular case.

The “in the course of” prong concerns the time, place, and circumstances of the injury. If a worker is injured while working on employer property, that provides for an easy analysis. Conversely, if a remote employee has autonomy over his working hours, then the employer is at the liberty of the worker’s reporting when he says he was injured while performing work-related activities at 11pm on a Wednesday. Or, if the worker has a remote station and can operate from a coffee shop, or elsewhere, that too can cause questions regarding injury reporting.

The “arising out of” prong concerns the causal link of the injury and the worker’s employment. The nature of the employee’s work and/or work environment must expose him to a risk that bears a causal connection to the injury. The acceptable causal connection is a low threshold, but it must be met nonetheless. One difficulty that arises with remote workers is that the employer has less control over the employee’s work environment and potentially injurious exposures. So, the “arising out of” prong provides a much more difficult analysis for remote employees, because the situation gives rise to a more rapid interplay between work activities and non-work activities.

If you question the credibility/compensability of a remote injury claim, initial investigation is critical. Get a recorded statement from the employee and accumulate as much information as possible regarding the factual circumstances of the alleged injury. It may also be worth following up with the worker’s initial medical providers to confirm the details of the worker’s reporting. For instance, some providers ask patients if the injury was work-related at intake, but that may not make it into the chart note.

Allowing employees to work remotely is a wonderful, and oft-appreciated, option, especially in this day and age. However, in doing so, the employer does cede a large amount of control over its workers’ hours and environment. All applicable case law, administrative, and statutory authority applies to remote employees, the same as though they are working on company property, but the “course and scope” analysis is substantially trickier.

If you have any questions, concerns, or would like to discuss this, or any other Oregon workers’ compensation, issue further, please contact me at 503-595-6109 or aevenson@sbhlegal.com. Stay safe!