Legal Trends

Going and Coming Exempt in WC Case

A Pennsylvania court calls into question the limitations on the going and coming rule.
By: | January 10, 2018 • 4 min read

The “going and coming” rule states that workers’ compensation benefits do not apply to injuries sustained while commuting to or from work, but that line in the sand can get a little blurred when the employee is driving a company-owned vehicle.

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Such was the case when Shawn Fields and Herman Strother, two employees of Carl G’s Total Cleanouts, transported debris from a job site to a scrapyard. While in transit, the men crashed. Strother was fine, but Fields was injured in the incident.

Fields filed for workers’ compensation, believing his injury occurred on the job. Carl G’s, however, did not see it that way. The demolition and excavation company said that because Fields was off the property at time of injury it was not liable for his comp coverage.

The case was brought before a workers’ compensation judge, who asked Fields to explain how his injury arose in the “course and scope of employment.”

Fields explained the scenario: He and Strother were working at the same job site for about three weeks. One day, when the crew finished up, they decided to take the company truck filled with waste materials and drop them off at a nearby scrapyard. Afterwards, Strother would drop Fields off at home and return the vehicle to the Carl G’s job site.

But instead, the men were involved in an accident. In his argument, Fields said he was an exception to the going and coming rule; he was working for Carl G’s at the time of the accident and injury.

The judge looked to his predecessors. In previous rulings of similar nature, the court found the going and coming rule applied to when there was a fixed place of work. Fields, the judge ruled, had a fixed place of work — Carl G’s crew had been at the same location for three weeks. The judge determined the going and coming rule applied because it was a fixed location, and Carl G’s was not responsible for workers’ comp coverage.

Fields appealed.

The “going and coming” rule states that workers’ compensation benefits do not apply to injuries sustained while commuting to or from work, but that line in the sand can get a little blurred when the employee is driving a company-owned vehicle.

The Commonwealth Court of Pennsylvania looked at the judge’s ruling, re-examining the “course and scope” clause.

“The WCJ concluded that Claimant had failed to demonstrate that the injury occurred in the course and scope of employment because Claimant was commuting home from work at the time of the accident,” the court said. “The WCJ … focused the inquiry on whether Claimant’s place of work was fixed because of the ad hoc nature of his employment.”

The court reviewed Pennsylvania’s exceptions to the going and coming rule, particularly the one in which an employee would receive benefits if they were acting under the company.

Fields was, in this case, traveling to and from a scrapyard for work. His injuries stemmed from part of his job duties and not from a personal commute home, the court decided.

“Based on the facts found by the WCJ and the supporting evidence, there is substantial evidence to support the legal conclusion that Claimant was furthering the business of Employer when he was injured,” it concluded.

Carl G’s was responsible to pay workers’ comp benefits to Fields.

Exceptions to the Rule

There are several exceptions to the going and coming rule that most states acknowledge and turn to when the rule is up for debate.

When an employee is using a company vehicle to commute to or from a location, then the going and coming rule doesn’t apply. In Fields’s appeal, the court looked to this exception when it overturned the workers’ comp judge’s ruling.

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Other exceptions include:

If an employee’s job description requires them to be on the road. An example would be someone working in the postal service or cross-country as a truck driver.

If an employee is traveling between multiple job sites. An example would be a computer technician driving from one office building to the next. This does not include the worker’s commute to and from work each day, but instead looks at time spent on the road during a shift.

If an employee is traveling commercially. An example would be a person traveling on a business trip. Typically, the entire time spent away from the office — from beginning of travel to journey’s end — is covered under workers’ comp policies for most businesses.

If an employee is sent out on a special errand. An example would be an employee being asked to grab the manager a cup of coffee from a local shop or pick up lunch for the team.

Knowing the exceptions can better prepare employees and employers on duties that can be performed under the going and coming rule.

To read the full court opinion on Fields’s case, see Shawn Fields vs. Workers Compensation Appeal Board.

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Absence Management

Establishing Balance With Volunteers

It’s good business to allow job-leave for volunteer emergency responders, whether or not state laws apply.
By: | January 10, 2018 • 7 min read

If 2017 had a moniker, it might be “the year of the natural disasters,” thanks to a phenomenal array of catastrophic or severe events— hurricanes, tornadoes, wildfires, ice storms and floods.

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Combined with smaller-scale fires and other emergencies, these incidents tax the resources of local and state emergency services, often prompting the need to call volunteer emergency responders into action.

But as lean as most organizations are already running, volunteer activities can sometimes cause friction between employees and employers. Handling conflicts the wrong way can potentially lead to legal headaches, harm employee morale and batter a company’s reputation.

State by State Variations

Most employers are aware of the various federal and state leave laws protecting their employees, including family and medical leave, pregnancy leave and military leave. But leave laws that protect the livelihoods of volunteer emergency responders are more likely to fly under the radar of some HR managers and risk managers.

Such laws don’t exist in every state, but more than 20 states do have some type of law in place to protect volunteers including emergency responders, firefighters, disaster workers, medical responders, ambulance drivers or peace officers.

Marti Cardi, vice president of Product Compliance for Matrix Absence Management

The laws vary broadly. Nearly all specify that such leave be unpaid, and that employees disclose their volunteer status to employers and provide documentation for each leave. But there is a spectrum of variations in terms of what may trigger an eligible leave. Some, for instance, apply for any emergency that prompts a call from the volunteer’s affiliated responder group. Others may require a government declaration of emergency for the law to be triggered.

While many of the laws do not explicitly require employers to let employees leave work when called to an emergency during a shift, most specify that an employee may be late or even miss work entirely without facing termination or any other adverse employment action.

Some states mandate a maximum number of unpaid leave days that a volunteer can claim. But others may place more significant burdens on employers. In California, for instance, employers with 50 or more employees are required to grant up to 14 days of unpaid leave for training activities in addition to any leave taken to respond to emergency events. For multistate employers, keeping on top of what obligations may apply in each circumstance can be a challenge.

Significant Risks

Large or mid-sized employers may rely on absence management providers to keep them in compliance. For smaller employers though, it may be as simple as looking up a state’s law via Google to find out what’s required. However, checking in with the state department of labor or the company’s attorney may be the best way to get the correct facts.

“I would caution that just because you don’t find something [on the internet], it doesn’t mean it’s not there,” said absence management and employment law attorney Marti Cardi, vice president of Product Compliance for Matrix Absence Management.

For example, Cardi said, an obscure Texas law provides job-protected leave for volunteer ham radio operators called into service during an emergency.

Cardi said employers should task HR to investigate the laws in each state the company operates in, and to ensure that supervisors are educated about the existence of these laws.

“If a supervisor is told by one of his or her employees, ‘Sorry I’m not coming in today … I’ve been called to volunteer firefighter duty for the [nearby region] fire,’” she said, you want to be sure that the supervisor knows not to take action against the employee, and to contact HR for guidance.

“Training supervisors to be aware of this kind of absence is really important.”

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An employer that does terminate a protected volunteer for responding to an emergency may be ordered to pay back wages and reinstate the employee. In some cases, the employee may also be able to sue for wrongful termination.

And of course, “you don’t want to be the company in the headlines that is getting sued because you fired the volunteer firefighter,” she added.

If an employer bars a volunteer from responding, the worst-case scenario may be a third-party claim. Failure to comply with the law could give rise to a claim along the lines of “‘If you had complied with your statutory obligation to give Jane Doe time to respond, my loved one would not have died,’” explained Philadelphia-based Jonathan Segal, partner at law firm Duane Morris and managing principal of the Duane Morris Institute.

“That’s the claim I think is the largest in terms of legal risk.”

Even if no one dies or is seriously injured, he added, “there could still be significant reputational risk if an individual were to go to the media and say, ‘Look, I got called by the fire department and I wasn’t allowed to go.’”

The Right Thing to Do

What employers should be thinking about, Segal said, is that whether or not you have a legal obligation to provide job-protected leave for volunteer responders, “there’s still the question of what are the consequences if you don’t?”

Employee morale should be factored in, he said. The last thing any company wants is for employees to perceive it as insensitive to their interests or the interests of the community at large.

“Sometimes employers need to go beyond the law, and this is one of those times,” — Jonathan Segal, partner, Duane Morris; managing principal, Duane Morris Institute

“How is this going to resonate with my employees, with my workforce, how are people going to see this? These are all relevant factors to consider,” he said.

There’s an argument to be made for employers to look at the bigger picture when it comes to any volunteer responders on their payroll, said Segal.

“Sometimes employers need to go beyond the law, and this is one of those times,” he said. “Think about the case where’s there’s not a specific state law [for emergency responders] and you say to a volunteer, ‘No, you can’t leave to deal with this fire’ and then people die. You as an employer have potentially played a role, indirectly, because you didn’t allow the first responder or responders to go,” he said.

The bottom line is that “it’s the right thing to do, even if it’s not required by law,” agreed Cardi.

“I feel that companies should have a policy that they’re not going to discipline or discharge someone for absences due to this kind of civic service, subject to verification of course.”

Clear Policy

While most employers do strive to be good corporate citizens, it goes without question that employers need to guard their own interests. It’s not especially likely that volunteer responders will try to take advantage of the unpaid leave allowed them, but of course, it could happen.

That’s why it’s important to have policies that are aligned with state laws. Those policies could include:

  • Notifying the company of any volunteer affiliations either upon hire or as soon they are activated as volunteers.
  • Requiring that employees notify a supervisor as soon as possible if called to an emergency (state requirements vary).
  • Requiring documentation after the event from the head of the entity supervising the volunteer’s activities.

If at some point it becomes excessive – someone has responded to emergencies five times in nine weeks, then it’s time to examine the specifics of the law and have a discussion with the employee about what’s reasonable, said Segal. It may also be time to ask specifics about whether the person is volunteering each time, or are they being called.

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In some cases, the discussion may need to be about finding a middle ground, especially if an employee has taken on an excessively demanding volunteer role.

“We encourage volunteers to pick the style that best fits their schedule,” said Greta Gustafson, a representative of the American Red Cross. “Disaster volunteers can elect to respond to disasters locally, nationally, or even virtually, and each assignment varies in length — from responding overnight to a home fire in your community to deploying across the country for several weeks following a hurricane.

“The Red Cross encourages all volunteers to talk with their employers to determine their availability and to communicate this with their local Red Cross chapter.”

Segal suggests approaching it as an interactive dialogue — borrowing from the ADA. “Employers may need to open a discussion along the lines of ‘I need you here this week because this week we have a deliverable on Friday and you’re critical to that client deliverable,’” he said, but also identify when the employee’s absence would be less critical.

No doubt there will be tough calls. An employer may have its hands full just trying to meet basic customer needs and need all hands on deck.

“That may be a situation where you say, ‘First let me check the law,’” said Segal. If there’s a leave law that applies, “then I’m going to need to comply with it. If there’s not, then you may need to balance competing interests and say, ‘We need you here.’” &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]