WORKERS’ COMP
“WORKCATION” AND WORK COMP One day COVID will be a memory; however, some of changes in work options may continue, maybe into perpetuity. One is the option to work from home – or anyplace the worker desires.
office location, 3.A. assignment is easy. Regardless where the employees live, only the state in which the operation(s) is/are located must be considered when extending status as a 3.A. primary state.
Until COVID, the majority of “office” workers were required to regularly be present in a central office location. Whether the requirement was daily, threedays-a-week or even once a week, the employees’ presence in the office was required.
Even if the employer is located near a state line and has employees traveling across the border to get to work the Coming and Going Rule allowed the employer to ignore the employee’s state of residence for workers’ compensation purposes. Traditionally the coming and going rule holds that injuries suffered traveling to or home from work, or even while going to and returning from lunch, are not compensable.
COVID nixed this requirement for an extended period. Working from home, previously limited to just a few workers, became the normal operating procedure for millions of previously office-bound workers. This change in venue created unexpected workers’ compensation issues. The first was the need to consider the employee’s state of residence within the workers’ compensation coverage grant. Because work comp is state based, the policy responds only when a state is specifically listed as either a 3.A. (primary) state or granted protection as a 3.C. (secondary) state, which may or may not require a specific listing depending on the insurance carrier. Primary or 3.A. status is required when: • Gaps exist between the extraterritorial provisions of the home state and the reciprocity allowances of the state to which the employee travels to work temporarily; or • There are on-going (not temporary) operations in a state. Deciding which state or states require(s) listing as a 3.A. state is easy when the employees are based in a single location – such as an office building – until COVID-19 complicated the issue. Single Location Employees When employees work at a single location such as an 22 | JULY 2021 |
wisconsin INDEPENDENT AGENT
The logic behind the rule is that the employee is not furthering the employer’s interest or serving the business’ need while traveling to or home from work; the employee is serving his or her own needs (the need to have a job and earn a living). Because of the coming and going rule, even when a location-specific employee lives in another state, the state of residency is not required to be listed as a 3.A. state. The employees are assigned to the operational location. COVID-19 Complications COVID-19 may have complicated or even negated the idea of the coming and going rule. Historically employers could “ignore” an employee’s state of residence, but COVID-19 pushed employees out of the employer’s location and required them to set up operations in their home. Now the state of residence matters. When employees work from their homes located in another state, there is a strong argument that there are now operations in the employee’s state of residency. Whether the employee’s home state needs to be listed as a 3.A. state is a function of permanency and the extraterritoriality and reciprocity provisions of the two states in question (the employer’s operational state and the employee’s state of residency).
