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The Coming and Going Rule
Employees in Pennsylvania often inquire about whether workers’ compensation benefits are payable if they are injured while on the way to or from work. In general, employees injured while commuting to or from work will not be eligible for workers’ compensation benefits. In workers’ compensation parlance this concept is known as “the coming and going rule.” However, there are several exceptions to this rule of thumb. This article will explore some exceptions and the various considerations that employees and employers should consider in these situations.
The exceptions to the coming and going rule fall in four general categories: (1) the employee has no fixed place of work (i.e. a “traveling employee”); (2) the employment contract includes transportation to and from work; (3) the employee is on a special assignment for the employer; and (4) special circumstances are such that the employee was furthering the business of the employer while commuting.
The typical situation occurs when an employee gets in a car accident on the way to work. Unless the employee is considered a “traveling employee” the courts will generally rule that no workers’ compensation will be due because that employee is not yet in the course and scope of employment. The most succinct judicial summary of the law relating to the course of employment appears in W.C.A.B. (Slugenhaupt) v. U.S. Steel Corp., 376 A.2d 271 (Pa.Cmwlth. 1977). In that case the Commonwealth Court outlined the following:
Injuries may be sustained in the course of employment in two distinct situations: (1) where the employee, whether on or of the employer’s premises, is injured while actually engaged in the furtherance of the employer’s business or affairs, or (2) where the employee although not actually engaged in the furtherance of the employer’s business affairs (a) is on the premises occupied or under the control of the employer, or upon which the employer’s business or affairs are being carried on; (b) is required by the nature of his employment to be present on his employer’s premises; and (c) sustains injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon.
The case law regarding the definition of “furtherance of employer’s business” is extensive; however, generally, when an employee merely commuting to or from work is not furthering the employer’s business. On the other hand, if the employee is a “traveling employee” then the course of employment is much broader. The question of whether an employee is a “traveling employee” is generally defined by whether the employee has a fixed office that he or she goes to every day. If not, the employee is considered a traveling employee. An example would be a cable repair person. If he or she travels straight from home to a customer’s home and only checks in with the office on occasion, the employee is most likely be a traveling employee. Further, if that employee were to get hurt on the way to his or her first job, the injury would fall outside of the “coming and going” rule, and be compensable.
The more difficult question arises in situations where it is unclear whether the employee is truly a traveling employee. For example, in the above situation, if the cable repairman had to travel to a main office every day before proceeding out to travel for the entire day, would he be considered a “traveling employee?” What if he drives a company work van every day? What if that van has the company logo and phone number on the outside? The law gets a little grey in these situations. Technically the employee is reporting to a fixed office, but he spends nearly the entire day on the road, and frequently must report directly to customers’ residences. Further, he drives a van with a logo and phone number, and arguably is furthering the employer’s business by advertising every time he drives. Plus, if the employee can not use the van for any other purpose but work (as part of his employment contract), it could be argued that the second he steps in the van, he is furthering the employer’s business because it is being used for work purposes only, especially if there is a contract for employment governing the use of the vehicle. For a traveling employee to be denied benefits based on the coming and going rule the employer must show a distinct break in the employment duties. Pfizer, Inc.v. WCAB (Gresham), 568 A. 2d 286 (Pa. Cmwlth. 1989). Thus, for a traveling employee, if an accident occurs on en route to vacation, but before a telephone call into the office it could be found compensable. However, if that same employee stops at a store to pick up food or other non-work related items before traveling home, he may be found to have broken from his trip home enough to be considered outside of the furtherance of the employer’s business.
An employee might be considered on a “special assignment” and could be in the scope of employment even though normally the coming and going rule might apply. For example, an employee injured on the way home to have dinner before attending an evening appointment for an employer was considered in the course of employment under the special mission exception to the “coming and going” rule. The court found that his work duties had not ended that day because of the evening appointment. The case law in this area is extensive, and this article covers the general rules as well as the general exceptions. If you are employee presented with these issues please contact the Pennsylvania workers’ compensation law lawyers at Wolf, Baldwin & Associates, P.C.