Employers generally are not liable for employees' injuries sustained during routine travel to and from their regular place of work. This so-called "going-and-coming rule" is commonly recognized by states in the Workers' Comp arena. As with any rule, there are exceptions, particularly if an employer has control over or directs an employee's going-and-coming mission. Employees will try novel arguments to claim the exception.
Late For Work
A school bus driver in New Jersey was scheduled to work between 7:15 a.m. and 9:15 a.m. and between 2:15 p.m. and 4:15 p.m. each workday. She had an accident in her own car as she traveled to the bus yard for the afternoon shift. Her employer fought her Workers' Comp claim under the going-and-coming rule.
The employee claimed to be on her employer's "special mission" or "travel time." In fact, she was late for work and was injured during a block of time in which she earned wages.
A judge tossed out her claim. Reasons: Neither exception applied. She wasn't performing any duties assigned or directed by her employer; she wasn't paid for travel to and from her job site; and she wasn't driving a company-owned or -authorized vehicle at the time of her accident. (Delisi v. Woolfington Body Company, NJ Div. Workers' Comp, Claim Petition No. 2003-2854, 2004)
An employee who is injured in an employer's parking lot before work may have a strong argument that his/her injury is compensable because it was sustained on the company's premises. It may be less clear cut, however, if a worker was struck by a car after parking it on a nearby street on the way to work.
In this case, an employer didn't have a parking lot. Instead, it encouraged workers to park on the streets near and adjacent to the workplace; it didn't have a written parking policy. A Workers' Comp Appeals Board granted the worker benefits under a "special risk" exception to the going-and-coming-rule.
But a state appeals court begged to differ. Reason: There was no evidence of risk any greater or different than that experienced by the general public with street parking. (Sharp Coronado Hospital v. WCAP, CA App. Ct., No. D042518, 2004)
Words to the wise: Remember that Workers' Comp laws are state-specific. Check out how courts interpret the going-and-coming rule in your state. If an employee is injured traveling to or from work, immediately investigate. Find out the time, place, and circumstances of the injury.
Use these questions to judge your potential liability. The more "no" answers, the more likely you will prevail with the going-and-coming rule. "Exceptions" illustrate when employers have been held liable.
Was the injury sustained in the course of doing business? Exception: An employee was sent home by a supervisor to change clothes and was injured on the return trip to work.
Was the worker subjected to a greater hazard than the general public? Exception: Road construction employers often set up a temporary parking lot away from the jobsite. Such a location may be considered a greater hazard to employees than the general public.
How much control does the employer have over the area where the injury occurred? Exception: An employee slipped on an icy patch on a sidewalk that the employer is required by city ordinance to keep free of ice.
Was the employee performing a task that was beneficial to the company when the injury happened? Exception: An employee who is "on call" after regular working hours is injured traveling to work after receiving a call.
Was transportation to or from work furnished or paid for by the employer? Exception: A bus driver was paid a "road relief allowance" to compensate her for the inconvenience of ending her shift at a different location from where she started. She injured herself stepping off a bus near her parking area after her shift ended.
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