FECA BULLETIN NO. 98-09

Issue Date: June 5, 1998
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Expiration Date: June 6, 1999
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Subject: Performance of Duty--Alternative Worksites
 
Background: For some time now, federal agencies have experimented with programs which allow employees to work from locations other than the federal agency's premises. Such locations include "satellite" offices in outlying areas as well as individual employees' homes. The performance of duty issues with respect to "satellite" offices are straightforward, since these sites are in fact regular offices, though employees from a variety of agencies may work there. However, for employees working at home, performance of duty issues are less clear.
 
While OWCP has received very few claims from employees in such programs (sometimes called "telecommuting" or "flexiplace"), we anticipate more in the future due to the growth of such programs, and we need to ensure that such claims are handled uniformly in all district offices.
 
Purpose: To provide guidance for determining whether employees injured while working at alternative worksites meet the "performance of duty" criterion for coverage under the FECA
 
Applicability: Claims Examiners, Senior Claims Examiners, Supervisors, Rehabilitation Specialists, Staff Nurses, and Technical Assistants
 
Actions:
 
1. Employees who are directly engaged in performing the duties of their jobs are covered by the FECA, regardless of whether the work is performed on the agency's premises or at an alternative worksite. There is no statement (such as a "safety checklist") that can be signed by the employee to negate this coverage. As always, any affirmative defense of "willful misconduct" must be substantiated by evidence that the employee disobeyed an order that was routinely enforced.
 
2. However, when an employee is on property under his or her own control, activities which are not immediately directed toward the actual performance of regular duties do not arise out of employment. An employee who works at a desk at home removes himself or herself from the performance of regular duties as soon as he or she walks away from that desk to use the bathroom, get a cup of coffee, or seek fresh air. The "Personal Comfort Doctrine" does not apply, and coverage cannot be extended for injuries which result from such activities. This point is illustrated by two actual cases:
 
a. An employee (who already used a wheelchair) was injured when he reached to answer the telephone while working at home. Coverage was found because he was required to answer the telephone as part of his official duties.
 
b. An employee was injured while walking downstairs at home to check her furnace, which was malfunctioning. Maintenance of the furnace was not a requirement of her official duties. Once she left her immediate work area, she removed herself from coverage under the FECA.
 
3. By extension of the rule described in item 2, a chronic illness that developed due to environmental exposure at home would not be covered under the FECA. The environment in an employee's home is not under the employer's control, and the "premises rule" that applies when an employee is on property owned or maintained by the employer is not relevant. The employee would be exposed to the home environment whether working for the government or not. Therefore, he or she would not be exposed to any risk inherent to employment while working at home.
 
4. Apart from alternative worksite programs, an employer may allow an employee who is recuperating from an illness to perform work at home. If the illness has resulted from a work-related injury, the work performed at home may be a light-duty job. The effect on workers' compensation benefits of returning to work at home is no different from that of returning to any other light-duty job. The employee is entitled to compensation for any loss of wage-earning capacity resulting from a compensable injury.
 
5. If an employee cannot continue to work at home because of injury-related residuals, he or she is entitled to compensation. This situation is no different from that of an employee who attempts to return to light duty on the employer's premises.
 
6. If an employee cannot continue to work at home because the home environment is not conducive to performance of his or her duties, the situation represents a withdrawal of light duty, since an employer cannot usually dictate an employee's home environment or require an employee to use personal resources to perform official duties.
 
7. If the employer can no longer provide the employee with work at home, the situation represents a withdrawal of light duty.
 
 
Disposition: Retain until the indicated expiration date.
 
THOMAS M. MARKEY
Director for
Federal Employees' Compensation