The Ohio House of Representatives passed HB 447 in February, 2022 and the bill is now pending approval by the Ohio Senate. If passed, this bill could expand the definition of a work injury to include some injuries sustained in the employee’s own home, provided certain criteria are met.

Certainly, the precipitating reason for this proposed bill is the recent increase in remote and telework arrangements as a result of the COVID-19 pandemic and its repercussions. Likewise, the increase in these types of work arrangements has given rise to new considerations for workers’ compensation purposes. The range of injuries that could occur or disabilities that could develop in a home environment are endless. Therefore, determining what is properly considered a work-related injury or disability is a necessity. The apparent purpose of this bill is to provide such a framework. However, as with so many workers’ compensation situations, the application of the proposed criteria will be fact-specific and likely contentious. 

The language of the proposed bill, as passed by the House of Representatives, adds a clause to R.C. 4123.01 (C) which addresses situations that do not constitute an “injury.” At first glance, the bill seems to indicate an injury or disability sustained at an employee’s home will not be considered an “injury” for purposes of workers’ compensation. However, closer review of the proposed language reveals that if certain criteria are established by the employee, a workers’ compensation claim can be supported. 

As passed, the language of House Bill 447 reads as follows:

(C)  “… Injury” does not include:

(4)   Injury or disability sustained by an employee who performs the employee's duties in a work area that is located within the employee's home and that is separate and distinct from the location of the employer, unless all of the following apply:

(a) The employee's injury or disability arises out of the employee's employment.

(b) The employee's injury or disability was caused by a special hazard of the employee's employment activity.

(c) The employee's injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

This language should sound familiar. These factors echo some of the considerations for coming and going situations. The “coming and going” rule is typically applied to bar “fixed situs” employees from workers’ compensation claims for an injury or disability that an employee sustains on the way to or from work. Of course, exceptions to that rule have developed over the years. Some injuries or disabilities sustained on the way to or from work have been deemed compensable workers’ compensation claims, but only in specific situations. Examples of valid workers’ compensation claims include instances where the injury was caused by a special hazard created by the employer, the injury occurred within the “zone of employment,” or the totality of the circumstances support a causal relationship between the injury and the work arrangement. In order to avoid having a claim denied on the basis of the “coming and going” rule, only one of those exceptions must be proven to apply. 

However, for a remote worker claim to be allowed, an employee would be required to prove all three elements. Therefore, HB 447 seems to codify the principles used to overcome the “coming and going” rule to establish a workers’ compensation claim, but only in the very specific context of injury or disability that occurred at an employee’s home and at a heightened standard. Interestingly, the “coming and going” rule and the exceptions to it have never been codified, but were created by judicial precedent. 

Decisions as to the compensability of remote worker claims, applying the criteria of proposed HB 447, will require analysis of highly fact-specific factors. For example, the compensability of an injury sustained by an employee working from home to screen print or embroider merchandise (and utilizing equipment for those purposes) would seem to fit squarely within the three criterion required to constitute an “injury,” but an injury sustained by an employee working from home (and simply experiencing muscular pain from doing so) performing office or clerical work would be much more debatable.

It seems that the key consideration will be how involved the employer is in the employee’s work environment. If the employer provides specific equipment for the employee to use while working from home and the employee is injured using that equipment, a workers’ compensation claim would seem justifiable. However, if the employer simply asks the employee to perform his or her job from home, a neck sprain associated with poor ergonomics at the employee’s work station or a trip and fall due to an obstacle on the floor would seem to be an over-extension of the workers’ compensation system. The more difficult situations to address will be those which fall somewhere in the middle. Take the situation of an employee using an employer-supplied laptop who suffers an unfortunate electrocution sustained because of an ungrounded outlet. In that situation, employer benefit may be easily established but the other two factors of a “special hazard” of employment and arising out of the employee’s employment would be more difficult to establish. The employer would have no way of controlling the internal wiring of an employee’s home. 

If passed, only time will tell if this legislation will have a dramatic effect on the workers’ compensation landscape. Should you have any questions regarding these or any workers’ compensation issues, please contact a Dinsmore attorney.