Workers’ compensation insurance: Navigating the “going and coming” rule

Published on Wed, 12/10/2014 - 17:32

Some people say that if there are three or more exceptions to a rule, it might be time to change the rule. That could certainly apply to the workers’ compensation “going and coming” rule. In most states, the general rule has been that if an employee incurs an injury while commuting to or from work, the injury isn’t covered under workers’ compensation. Court cases over the years have generally held that:

  • An employee isn’t rendering any service to the employer while commuting
  • Going to or from work is the employee's responsibility
  • Hazards encountered while commuting to work are fairly common to all workers regardless of their job, so such risks can’t be solely attributed to a person's particular employment
  • Workers' compensation insurance doesn’t cover workers for common perils of life

It seems simple enough in theory – an injury sustained at work is covered, while an injury sustained on the way to or from work isn’t. But it’s a lot more complicated in real-life applications.

Exceptions are the new rule.

Courts have created so many exceptions to the “going and coming” rule over the years, many feel the rule itself is no longer relevant. Written at a time when a fixed and ordinary commute was the norm, the rule isn’t always a good fit today with more people telecommuting and greater dependence on computers and the Internet. Then there’s the “traveling employee” who has no fixed place of work, such as a cable technician, who would generally be entitled to coverage while commuting.

While each state has its own interpretations, here are five of the most common exceptions:

  1. Premises Exception. Let’s say you provide parking for your employees on your property. If an employee parks there and gets injured while walking to your premises, the injury is compensable.
  2. Proximity Exception. If an employee parks in a lot next to your premises and gets injured while walking to your premises, is it compensable? If you maintain the lot and/or specifically direct your employees to park there, yes.
  3. Own-Conveyance Exception. If you require an employee such as an outside salesperson to drive her own vehicle to work and have it available during the workday as a condition of employment, any injury she sustains while driving to or from work is likely compensable.
  4. “Special Mission” Exception. If you call in a maintenance worker outside of normal hours to respond to an emergency plumbing issue, and that worker is injured in an accident, workers comp will likely have to cover it. It’s considered a “special mission” that wouldn’t have been undertaken if it wasn’t for the obligation of employment.
  5. Dual Purpose Exception. If an employee is injured while driving to or from work and the travel serves both a business and personal purpose, the injury is likely compensable if the employee is performing a service for you that would have made the trip necessary regardless of the personal errand.

How can you avoid these workers’ compensation roadblocks?

Obviously, human error and simple negligence will happen. But something as innocent as an employee running a quick personal errand while traveling for business can create huge problems. So carefully weigh these risks and be proactive about mitigating them. Start by setting strict parameters about acceptable use of company vehicles, restricting who is an acceptable driver, having a formal process for workers who travel for service or sales calls to check in and out, and keeping time and mileage records diligently.

To find out more about steering clear of these and other workers' compensation exceptions, contact an expert at Heffernan today.