As a result of the COVID 19 pandemic, with many more employees working from home, employers have raised questions of compensability that are unique to injured workers in the working from home environment. In addition, employers need to know how to best identify and control risks of injury.

These questions will extend well beyond this period of a pandemic as many companies learn to work in a more agile and flexible manner.

Existing legislation and case law does not yet address all the issues that may arise in 21st century workplaces and in the working from home context.

Ultimately, the question of whether a worker suffered a compensable injury whilst working from home is one that should be approached with guidance of expert legal assistance.

However, employers should be generally aware of what 'working from home' activities may be compensable under the various State and National workers' compensation schemes, actively seek to identify 'working from home' risks and be prepared to implement policies and procedures to mitigate against those risks.

We address the state of the law as it currently applies to those working from home, with the aim of enabling employers to start the conversation around what new risks may be present in both a COVID and post-COVID world.

Entitlements for injuries sustained whilst working from home

It is fairly consistent throughout all State-based jurisdictions, as well as the Comcare jurisdiction, that where an employee is required to work from home, including due to the COVID 19 pandemic, an injury sustained can be considered compensable under the right circumstances.

In particular, the various legislative provisions across all jurisdictions make it clear, either explicitly or implicitly, that there are two broad avenues in which injuries sustained whilst working at home could become compensable. Those are:

• when a worker is injured whilst actually working from home; or
• when a worker is injured whilst in an interval, interlude or 'ordinary recess' between actual work tasks whilst at home

Injury sustained whilst in the process of performing work at home

The starting point of determining whether an injured worker was actually engaged in work activities whilst working from home is outlined by the Henderson principle, based on the case of Henderson v Commissioner of Railways.

This case outlines various factors that a court must consider when determining whether a worker is in 'the course of employment' or not. The Henderson principle requires a court to look specifically at the nature and terms of employment, circumstances of employment and what a worker is required, expected or authorised to do in order to carry out their duties.

It is clear from the Henderson principle that workers injured while actually engaged in employment activities at home, assuming this forms part of the expected and/or authorised work activities (such as in the COVID 19 lockdown), will be entitled to compensation. Therefore, an employee who sustains a repetitive strain injury from work-related typing at home will be seen to have suffered a work related injury.

We note that whilst the above is relatively uncontroversial, Comcare in particular has helpfully provided specific guidance consistent with the Henderson principle, stating in relation to COVID 19 specifically that injuries sustained whilst working from home may be compensable, and noting that an employee's home can be their 'place of work'.

Workers injured whilst in an interval or interlude between work

Where matters become a bit more complex and risks become more exponential and difficult to identify, is where an employee is injured in their home whilst undertaking activities not directly related to employment. While such injuries would not ordinarily be compensable if the worker is not expected to work from home, if they are permitted to work for home such seemingly non-work related injuries could become compensable in the right circumstances.

The way such injuries could become compensable is usually through what various legislative provisions and common law doctrine refer either to injuries sustained whilst in a 'ordinary recess', 'interval' or 'interlude' between work activities (see for example section 46(1)(a) of the WIRC Act).

In other words, if an employee is engaged in a private activity at home in between work activities (ie going to the bathroom), this private activity could be seen as part of an overall period of work, be deemed to have been suffered 'in the course of employment' and therefore could be seen as compensable despite the actual activity not being work related.

With respect to what is required to prove that the worker is in a 'ordinary recess', the Supreme Court of Victoria in Drummond v Drummond said:

'The word "recess" in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea or "smoko". It is a period of rest incidental to a period of labour…'

In a specific example, the High Court in Landers v Dawson considered a situation where a worker was required to work continuous 24-hour shifts which were separated by substantial intervals of the day and night where he was free to do whatever he wished. The Court found that those intervals were not an 'ordinary recess' and therefore an injury sustained in this period would not be sustained to have occurred 'in the course of employment'.

The High Court distinguished the case of Landers however when deciding a subsequent case of Hatzimanolis v ANI Corp Limited. In that case the worker, who was stationed in a remote part of Western Australia for work purposes, used his day off work to drive a recreational vehicle and got injured undertaking this activity. The Court found the worker's injury was sustained in an 'interval or interlude' between work activities, and therefore his injury was compensable.

In coming to this decision, the Court noted that the worker was induced or encouraged by his employer to undertake the activity of driving the recreational vehicle on his day off. This case therefore entrenched the idea that an employer can dictate what is 'in the course of employment' by simply inducing or encouraging an employee to take part in a certain activity, even if that activity is not related to any work duties or even mandatory.

Aided by the High Court decision of Hatizimanolis, the Administrative Appeals Tribunal (AAT) in Hargreaves v Telstra Corporation Limited looked specifically at injuries sustained whilst 'working from home', and what constitutes a compensable injury outside of direct work activities.

In Hargreaves, the worker had an arrangement with her employer to work from home on certain days per week, and during one of those days she slipped down stairs whilst attempting to say goodbye to her son. The AAT agreed with the worker that this was in the course of her employment, being that she was engaged in a personal activity on a premises her employer agreed for her to work at, and in a permissive hour that she was able to undertake that task.

To prove how complex this area of law can be, the AAT found against the worker in similar circumstances in the matter of Demasi v Comcare. In that case, a worker injured herself while going for a run during a break while working from home. The AAT found against the worker, because, using the test in Hatzimanolis, the employer had not encouraged or induced the worker to go for a run whilst working from home, and therefore could not be responsible for the subsequent injury.

No 'working from home' paper would be complete without discussing the infamous case of Comcare v PVYW. The High Court in PVYW further entrenched the Hatzimanolis decision by finding that a worker who was injured whilst engaging in sexual intercourse on a work trip was not entitled to compensation.
Not surprisingly, the High Court found that whilst the worker's employer actively induced her to be in the premises where she was at the time, the activity she was partaking in was neither induced nor encouraged by her employer, and therefore the activity was not undertaken in the 'course of employment'.

Controlling risks associated with employees working from home

Identifying potential risks

There may be various risks associated with employees working from home. Employers ought to cast the net wide when considering what potential hazards could be present to create an injury at home, both due to the direct work tasks undertaken along with tasks that may be considered to be undertaken in an 'ordinary recess' between work activities.

As a guide, risks specific to working from home could include:

• Slip/trip hazards in the home as a result of cluttered rooms, unsafe walkways and inadequate lighting
• Ergonomic hazards including workstation setups at home and potential manual handling requirements
• Mental health hazards including feelings of isolation due to separation from colleagues and feelings of stress associated with lack of (direct) support
• Disease hazards such as actually contracting a disease such as COVID whilst working from home

Assessing risks

Assessing the possibly exponential 'working from home' risks is not easy. It is certainly much more difficult than assessing risk in an office setting, whereby an employer has much more control over potential hazards (ie keeping the floors clear) and the scope of activities that ought be assessed is clearly much narrower.

Despite those limitations, where employees are likely to work from home for the long term, there are some basic steps employers can undertake to mitigate against the risk of injury. We consider employers should look into undertaking the following in that regard:

• Encourage employees to assess their work environment on a consistent basis, including maintaining clear workstations and walkways, ensuring there is suitable storage, checking equipment, maintaining good lighting and maintaining ventilation (this could be done via a video tutorial sent out to employees for instance)
• Encourage employees to establish a workstation that is physically separate from the rest of the home as much as possible, including establishing appropriate boundaries with partners, children and pets
• Encourage employees and their managers to establish clear working hours to avoid stress injuries from 'overworking' at home (for instance if an employee normally finishes work at 5:30 pm and an employee is still logged on at 8:00 pm, the employer can then make appropriate enquiries)
• Encourage employees to take regular breaks, stretch and change posture to avoid repetitive actions for long periods (again, a 15 minute 'stretching' video could be sent out to employees to follow along with at home)
• Remind employees about their own safety obligations including constantly looking to identify and report any hazards or safety issues in their home as soon as practicable (ie this could be done through a monthly 'pre-start checklist' employees need to fill in);
• Establish appropriate communication methods and encourage actively for staff to maintain ongoing contact to reduce the impact of isolation (regular team meetings, virtual team 'drinks'/trivia or simply checking in with employees regularly are good mechanisms to control this)
• Offer employees the opportunity to seek confidential counselling through an EPA or other like service.
• Importantly, ensure all expectations and arrangements regarding working from home are accurately documented and recorded, with updates to these made on a regular basis. This can be as simple as documenting days per week and hours per day an employee will be considered 'working' while at home, or may be more complex than that, providing for instance activities that may/may not be permitted in certain times.

If you receive a claim for compensation related to COVID 19/working from home arrangements

When assessing claims for compensation regarding injuries sustained either in a working from home setting, or generally related to the COVID 19 pandemic, we recommend ensuring that clear records are maintained and kept regarding the worker's working from home arrangements.

We recommend that full investigations are undertaken including tracing the worker's steps over the hours and even days prior to the incident to ensure a contemporaneous log is kept. This will ensure that the best decisions can be made once the claim is reviewed.

Keeping up in an era of rapid change

The COVID and post-COVID eras will demarcate a period of rapid change as to how businesses around the world operate in more ways than one. As most have seen to date, and will continue to see in our view, one of the most significant changes will be a move to more remote working, allowing flexibility and in many cases savings on business overheads.

While no doubt there are significant benefits for these types of arrangements, the nature of managing workplace risk is sure to alter dramatically as well, and the employers who are best prepared will reap the rewards.

We hope you have found the above useful in 'starting the conversation' on managing the unique risks associated with overseeing an agile workforce.
Our national team is available if you require any specific advice or would like some clarification on our views. We would, as always, be happy to assist.