Ohio House Bill 447 was signed into law by Governor DeWine on June 24, 2022, and went into effect September 23, 2022. The pertinent part of the bill for workers’ compensation claims amends the definition of “injury” in Ohio Rev. Code Sec. 4123.01(C)(4) by adding a fifth exclusion to its definition:
“Injury” includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment. “Injury” does not include: (1) Psychiatric conditions except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant or where the claimant’s psychiatric conditions have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate; (2) Injury or disability caused primarily by the natural deterioration of tissue, an organ, or part of the body; (3) Injury or disability incurred in voluntary participation in an employer-sponsored recreation or fitness activity if the employee signs a waiver of the employee’s right to compensation or benefits under this chapter prior to engaging in the recreation or fitness activity; (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.
(5) A condition that pre-existed an injury unless that pre-existing condition is substantially aggravated by the injury. Such a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation. However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.
Ohio courts have defined a “special hazard” as a “risk, either distinctive in nature or quantitatively greater than the risk common to the public.” MTD Products, Inc. v. Robatin, 61 Ohio St.3d 66, 68, 572 N.E.2d 661, 664 (1991) citing Littlefield v. Pillsbury Co., 6 Ohio St.3d 389, 453 N.E.2d 570 at syllabus (1983). Cases analyzing “special hazard” in the coming and going context of a workers’ compensation claim use a two-prong test: (1) “but for” the employment, the employee would not have been at the location where the injury occurred, and (2) the risk of injury is distinctive in nature or quantitatively greater than the risk common to the public. Id. Ohio courts also dictate that the special hazard of employment must be created by the employer. MTD Products, Inc., 61 Ohio St.3d at 69, 572 N.E.2d at 664.
Prior to the enactment of House Bill 447, injuries that occurred when an employee was performing remote work were analyzed in a similar manner as those occurring at the workplace—i.e., whether the injury occurred in the course of, and arising out of, one’s employment. House Bill 447 appears to place additional burdens on injured employees alleging an injury while performing remote work due to the “special hazard” requirement and by requiring the injury or disability to be sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.
Employers can take steps to reduce their workers’ compensation liability in remote work policies. For example, the remote work policy can dictate that employees are to carry out their same duties, assignments, and other obligations remotely as they do when working in the office. It can stipulate what the work week is (e.g., hours, business weekdays), and it can require that salaried employees be expected to work a similar schedule at home as they do at work or as other employees do at work. The employer can require a designated space for remote work with internet and other hardware and software requirements. The policy can require remote workers to record all hours worked and require advanced approval for work in excess of hours scheduled or outside of work-week hours. In doing so, employers can rely on their remote work policies to contest remote work claims involving injuries that occur outside of an employee’s duties, assignments, or other obligations, or that occur outside of the stipulated work week or o
utside of the designed home office area.