The following is a guest blog post by Gregory Grinberg, an associate with Harbinson Tune Kasselik in San Francisco, California. The firm specializes in workers’ compensation defense law. His blog, WCDefenseCA, deals with California workers’ compensation issues.
So, your employee was injured on the way to work… are you liable? Generally, the answer is “no,” but as with so many other things, there are some important exceptions.
California’s workers’ compensation system generally limits claims to those injuries that happen at work (in the course of and arising out of employment). This is often referred to as the “coming and going rule.”
Under that rule, injuries sustained by employees going to and coming from work are usually not the responsibility of the employer’s workers’ compensation insurance. But there are some notable exceptions to this rule that all employers, whether insured or self-insured, should know.
The general theme for all the exceptions is that the injury was sustained while traveling for some incidental benefit to the employer, “not common to commute trips by ordinary members of the work force.” See Hinjosa v Workmen’s Comp. Appeals Bd. Sometimes, for example, employment is not fixed at any particular location or time, e.g., an employee is a floater for various locations in a chain or is “on call” on an as-needed basis. In those cases, the “going and coming” rule will not apply and the employer would be liable for the employee’s injury.
Exceptions that follow this theme include
- The “commercial traveler” exception. The employer is liable for injuries sustained during business trips (flying to a conference, driving to meet a client, etc.).
- The “special mission” exception. The employer is liable for injuries sustained while the employee is engaged in an extraordinary task, within the course of employment, and undertaken at the request or invitation of the employer. Think of a plumber getting a 2 a.m. call at home from his boss asking him to fix something at a client’s house on the other side of town.
There’s another exception that tends to catch employers by surprise, and for good reason. When the employer provides all or a substantial portion of commute transportation costs, it is liable for the injuries sustained on the commute. This includes (1) providing a car; (2) reimbursement for the costs of carpool services; (3) additional payments provided to offset the cost of transportation; and (4) providing a van pool program. There is no requirement that the employer have any direct control over the transportation, such as requiring that an employee use a certain route or providing the driver.
An employer might read this rule and think: I’m providing an extra benefit to my employees and I get punished for it? What’s the point? Sometimes, the use of an “alternative commute program” is mandated by state or local laws, requiring the provision of commute benefits to reduce the number of cars on the road. Some cities even require the employers within their jurisdiction to reimburse the public transportation commute costs of their employees.
Fortunately, under Lab C §3600.8, employers are not liable for injuries sustained by employees voluntarily participating in government-mandated alternative commute programs, unless the employee is paid regular wages for travel time, the employee is a state employee in a vanpool registered to the state, or the employer has agreed to provide workers’ compensation coverage for travel time.
So, employers weighing the benefits of a floater work-force or providing employees with commute costs need to consider the additional liabilities, which include possible increases to insurance premiums, tort liability to third parties, or, if self-insured, administering, defending, and paying additional claims.
For everything you need to know about employer liability for injuries to their employees, turn to CEB’s Advising California Employers and Employees, chap 14. Also, on workers’ compensation coverage for employee injury while coming and going from work, check out California Workers’ Compensation Practice, chap 2.
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