Workers' Compensation: The Domestic Worker Exception

In Pennsylvania, employers are required under the Workers' Compensation Act ("WCA") to carry Workers' Compensation insurance if they employ at least one individual who could be injured while working in the state.  Of course, with every rule, there are some exceptions. And when it comes to the WCA, one of these is the Domestic Service Exception.  Section 321 of the WCA provides:

"(1) Any person who at the time of injury is engaged in a domestic service: Provided, however, That in cases where the employer of any such person shall have, prior to such injury, by application to the [D]epartment [of Labor and Industry] and approved by the [D]epartment, elected to come within the provisions of the [A]ct, such exemption shall now apply."  77 P.S. §676.

With a growing elderly population who may need in-home care, the exemption has becoming a highly debated topic.  In the recent case, Van Leer v. WCAB (Hudson), the Commonwealth Court was asked to decide what constitutes a domestic worker and when the aforementioned Domestic Service Exception applies.  The Claimant, Van Leer, was hired to be an in-home caretaker by Hudson, the Employer, an elderly woman who suffered from mild dementia.  While caring for Hudson, Van Leer sustained a number of work-related injuries including a broken nose, damaged teeth and lacerations, and thus, filed a Claim Petition seeking Workers' Compensation benefits.  The Employer denied liability on the grounds that Van Leer was precluded from receiving such benefits under the Domestic Service Exception.

In the initial Workers' Compensation hearing, the Judge concluded that Van Leer was indeed a domestic worker and was not entitled to Workers' Compensation benefits.  Significantly, the Judge determined that Van Leer's main job was simply to "sit there" and ensure Hudson did not fall or leave the house unattended.  Since Van Leer provided no medical care or skilled medical service to Hudson, it was found that Van Leer fell within the State's definition of a Domestic Worker.  The Claimant then appealed the decision and the matter ultimately went to the Commonwealth Court.

Noting the limited amount of case law on the issue, the Commonwealth Court undertook its own analysis of what qualifies as a domestic worker under Section 321.  In so doing, the Court extracted several key points from previous cases and ultimately determined that a domestic worker is one who is "engaged in activities in or around the Employer's household for the comfort and benefit of that household."  The Court distinguished between a caregiver who provides skilled care (such as a Certified Nurse's Aide) and a caregiver such as Hudson who does not provide professional or skilled services, but rather comfort and benefits tailored to the needs of her employer's household.  Consequently, the Court sided with Hudson again and found Van Leer is precluded from recovering Workers' Compensation benefits due to her role as a domestic worker.

Cases like this show just how nuanced Pennsylvania Workers' Compensation law can be.  In the above case, the Workers' Compensation Judge used Van Leer's testimony that her job consisted mostly of "sitting there making sure" Hudson did not fall, get hurt or leave the house as a basis to confirm her domestic caregiver status.  Such a small thread of Van Leer's testimony tied the Employer's entire case together nicely.  Thoughtful presentation of evidence, a good set of facts and guidance by a seasoned practitioner are tantamount to success in the Workers' Compensation arena.

While the Van Leer ruling relied heavily on the State's definition of a Domestic Worker, this case also brings to the forefront potential concerns around the Domestic Service Exception as currently defined in the WCA. According to the International Labour Organization, 80% of all domestic workers worldwide are women (and often women of color) and they are among the most vulnerable and exploited class of workers in the world. Therefore, during Women's History Month, it is important to consider the population this exception is primarily impacting and be reminded that traditionally defined "women's work", is undervalued societally and consequently, underprotected under the law.