Opinion Mondays: COVID-19 and the Going and Coming Rule

Within the community of workers’ compensation professionals, most of our COVID-19 attention has been directed to presumptions of compensability and to the relatively unprecedented awarding of benefits to employees who have contracted a communicable disease that is so pervasive throughout society. I posit, however, that there are other important issues lurking in the background. For example, because many employers (and employees) have become so comfortable with work-at-home arrangements, that phenomenon will likely continue long after the arrival and distribution of one or more COVID-19 vaccines. This decentralized pattern of white collar work will have important implications for the classic going and coming rule. As I argue below, in many instances, the work-at-home arrangement will result in the classification of the employee’s residence as a second work “premises,” such that any travel between that work environment and the employer’s primary facility will no longer be considered “a commute.”

Obvious Point: Much Less “Going and Coming”

With so many work-at-home arrangements, one point is obvious: We are seeing and will see fewer going and coming injuries because, by definition, there is so much less going and coming. For example, our youngest son is a mid-level HR employee for a large software company headquartered in Research Triangle Park. Prior to the virus, the one-way commute from his north Durham residence was 40 minutes. Now, since his “office” is located in one corner of the master bedroom, his “commute” is 4 seconds. Instead of maneuvering through rush hour traffic, he has to step over some of his children’s toys.

Less Obvious: Going and Coming Defense Won’t Apply to Many Traffic Accidents

There is another important implication, and this one isn’t at all obvious. For the many employers who will offer a blended work arrangement, with the employee working from home on some days, and in the employer’s primary office facility on others, the classic going and coming rule may not apply at all. Before you quickly disagree, just run with me here for just a minute.

Quick Refresher Exercise: What is the Going and Coming Rule?

The basic going and coming rule arises out of the tension between two competing ideas. The first is the acknowledgment that the course of employment is not confined to the actual manipulation of the tools of the work, nor to the exact hours of work. Second, while admittedly the employment is the cause of the employee’s journey between home and worksite, it has long been accepted that the workers’ compensation scheme was never intended to protect against all the perils of that journey [see Larson’s Workers’ Compensation Law, § 13.01]. And so, a compromise between the two extremes was hammered out, largely by case law, yet with a surprising degree of unanimity: For an employee having fixed hours and place of work, going to and from work is covered only on the employer’s premises [Larson, § 13.01[1]].

All Too Many in the Comp World Don’t Understand the Rule

Ask ten claims adjusters to state the going and coming rule and my suspicion is that in most cases you’ll hear something like the following:

The going and coming rule bars recovery of injuries sustained during the commute, unless they occur on or near the employer’s premises.

That statement of the rule is inaccurate. Generally speaking, unless the employee has fixed hours and a fixed place of work, his or her travel to the employer’s facility is not a commute. Yes, there is “travel,” but no, there is commute.

Interesting Precedents in Quite a Few States

Consider an old case–in Utah it is still good law– State Ins. Fund v. Industrial Comm’n, 15 Utah 2d 363, 393 P.2d 397 (1964). There, the Fund challenged an award of death benefits to the widow of an employee who sustained fatal injuries in an automobile accident as he drove to the employer’s primary offices. The deceased served as president of the employer. The deceased’s primary office was located on the west west side of town. Across town, to the east, however, the deceased and his wife lived in an apartment. The deceased utilized apartment no. 14 in the same building as an office. On the morning of the accident, the deceased went to apartment 14 to perform some work, returned to his apartment for breakfast, and then departed.

The Commission determined that the deceased was on his way from the east side office to the west side office at the time of the fatal injury. The appellate court affirmed, finding that the evidence sufficiently established that apartment 14 was utilized as a business office. The fact that he had breakfast in his apartment and was killed while traveling his usual route to the west-side office was irrelevant. Evidence of the long-established customs of the deceased give ample support for the Commission’s conclusion that he was in the course of his employment at the time of the accident.

Two Work Sites (i.e., Two Premises)

Readers might also consider Bentz v. Liberty N.W., 311 Mont. 361, 57 P.3d 832 (2002). There, a home-based employee was required to visit the employer’s local office at least once a week to perform some of his work functions. He sustained injuries when he slipped on ice as he checked his mail on his way home after working several hours at that local office. Affirming a judgment of the state workers’ compensation court, the Montana high court indicated that the employment arrangement created two work sites—the home-based office and the employer’s ordinary local office. Travel between those two employment sites was not a commute, stressed the court, and the employee’s injuries were, therefore, sustained in the course and scope of the employment.

This two work site designation is crucial to our COVID-19 discussion since travel between two separate employer premises is an accepted exception to the going and coming rule in many states [see Larson, § 13.01[4]].

Many Cases Denying Compensability Can Be Factually Distinguished

One can, of course, point to a number of decisions in which courts have refused to say there was a two-premises arrangement. For example, in Bramall v. Workers’ Comp. Appeals Bd., 78 Cal. App. 3d 151, 144 Cal. Rptr. 105, 43 Cal. Comp. Cases 288 (1976), citing Wilson v. Workers’ Comp. Appeals Bd., 16 Cal.3d 181, 127 Cal.Rptr. 313, 545 P.2d 225 (1976), the court held an employee’s decision to take several depositions to her home for later review was for her own convenience. That she performed some work at hime did not convert that home into a second work premises. Her travel between her home and her primary work office was a typical commute and her claim for injuries sustained in an accident was barred by the going and coming rule.

In a somewhat similar case, Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 575 A.2d 903 (App. Div. 1990), a union president did some union work at home, occasionally meeting with union officials or preparing paperwork. He was killed while commuting from his house to the union office in New York City. His wife sought compensation benefits on the ground that the travel was between one work place and another. The workers’ compensation court agreed and awarded compensation, but the superior court, appellate division, reversed. It held that the mere fact some work was done at home did not create the home as another premises of the employer so as to make a journey from the home to the union office a compensable event. Quoting Santa Rosa Jr. College v. Workers’ Comp. App. Bd., 40 Cal. 3d 345, 220 Cal. Rptr. 94, 708 P.2d 673 (1985), the court said that “hearthside activity—while commendable—does not create a white collar exception to the going and coming rule” [575 A.2d at 907].

In virtually all of the unsuccessful cases, denial of the claim was because the primary motivation for the work-at-home arrangement was the employee’s convenience. In our COVID-19 world, the hearthside activity is not just convenient for the employee; it is a necessity. It is often mandated by a governor’s emergency order. That should make a significant difference in the application of the going and coming rule to travel between work-at-home employee’s residence and his or her employer’s primary facility.

Let Me Hear From You

I pulled this piece together somewhat hurriedly this morning. I trust have made no glaring errors. My goal with this piece is two-fold. First, I wanted to present what I think is a somewhat contrarian view. Second, I wanted to initiate a conversation regarding the effects of COVID-19 on our workers’ compensation world that go beyond those that we’ve all been recently discussing —e.g., presumptions, safety protocols, diseases of ordinary life. I’d love to hear your own views. Either make your comment directly within my blog space or fire off an email to me at tom@workcompwriter.com.