In most states, an employee commuting to and from work is not considered in the course and scope of employment. If employees have accidents on the way to or from work, they are usually on their own and will not have access to benefits under Workers’ Compensation. There are, however, many exceptions to this rule, and this jurisprudence varies from state to state.
A “coming-and-going” question takes many factors into account and the outcome is highly dependent on the facts of the case and on the law of your state. The basis for most exceptions is that coverage applies when an injury arises from a peril that is related to employment, regardless of whether it occurs at the actual worksite. Typically, an injury that occurs while the worker is on a personal errand that substantially deviates from their employment is not viewed as being work-related even if it occurs on the employer's operating premises.
When are employees covered?
The following outlines a number of circumstances when employees might be covered:
- Salespersons, visiting nurses and other workers who spend a great deal of their time on the road or on-call. Because travel is an integral function of the job for these employees, and because they do not operate from a fixed locale, they are often exempt from the coming and going rule.
- On-call employees would also likely be covered from the moment they are called into work even if the injury happens in their home. For Example: If an on-call employee is called back to the workplace. This employee is usually covered from home to work and then from work back to home.
- Courts are generally liberal in determining compensability for accidents occurring during business travel away from home. Injuries that occur during recreational pursuits or other activities may be deemed compensable while traveling away from home, even if these activities would not be deemed work-related at home.
- Driving in a “zone of danger” or an area of special hazards. This might occur if an employee has to drive through a particularly dangerous area, such as blasting zones or construction sites, to get to work.
- Dual purpose or capacity. An example of this would be an employee who is driving home from work and performing an errand for the employer on the way. If the employer is deriving benefit from the employee's action, any injuries that occur may be compensable. For Example: (A) An employee is asked to pick up some supplies on the way home. This “deviation” is considered part of employment and any accident or injury during the "deviation" from the regular route would be covered. Or... (B) An employee leaves for lunch in their personal vehicle. A personal errand is not covered by Workers’ Compensation, however, a supervisor asks the employee to “pick up some sandwiches.” This errand now has a work-related aspect and Workers’ Compensation may apply under the “dual purpose” concept.
Report Your Claims Timely
Every state law is subject to interpretation by the legal system in place. For this reason, it is critical that carriers have prompt accurate reporting of such claims to assist them in determining compensability. As an insured, you have a contractual obligation to report losses or incidents that could generate claims to your insurance carrier. Reporting claims timely allows carriers to complete investigations properly and reserves their rights prior to any compensable decisions being made. Please contact your Claims Advocate directly for further consultation. "Coming and Going..."
Inquiry as to whether the “Coming and Going” rule applies to a particular situation should be made before ruling out the possibility of coverage for an accident that occurred during a commute to or from work. The following list of questions can help assess the situation:
- Did the injury occur during a normal work commute or during a personal errand away from work during the work day?
- Was the trip purely for personal purposes? If not, did the trip include both personal and business purposes? If so, would it still have been made if the personal reasons were eliminated?
- Did the employee deviate from a personal trip to do an errand for the employer? If yes, was the trip made at the employer's request?
- Is travel part of the employee’s job duties?
- Is the employee required to drive their own vehicle to work for use in job duties, or did the employer furnish the vehicle being driven or reimburse for mileage?
- Was the travel entirely paid by the employer?
- Was reimbursement for commuting expenses or payment for commuting time part of the employee’s work contract?
- Was the travel between multiple worksites or between buildings that are owned or controlled by the employer?
- Even if the injury occurred off the employer's property, was it during the entrance to or exit from the place of employment?
- Were there any particularly dangerous or hazardous aspects to the trip?
- What benefit did the employer gain from the employees travel? Did the trip mutually benefit both the employee and employer?
- Was the employee on-call?
- Was the employee attending an employer-sponsored activity? For example, traveling to a conference, seminar, class, or training at the request of the employer?
- Was the employee carrying work-related materials and did they present any special risks?
- Did misconduct or illegal conduct contribute to the cause of the injury?
For additional information about this article, please contact Penny Solski, Vice President of Claims, or Jodi Belland, Claims Representative, at The Horton Group.