The 'Going and Coming' Rule

Most people are aware that they may be eligible for workers’ compensation if they suffer an illness or injury at work. Employers are legally responsible for insurance against employees' losses from work-related injuries including time missed from work and medical costs. However, ‘when work begins or ends’ does not always have a clear definition. Generally, an employee’s commute is not considered by law as part of work. Therefore, it is unlikely that you will receive workers’ compensation for an injury suffered on your usual commute. This general rule is referred to as the ‘going and coming’ rule.

For a work-related injury to qualify for workers’ compensation, there is no legal requirement for it to occur on a job site or in the office. Even if the injury happens at a party sponsored by your employer, it would be covered by workers’ compensation. However, driving to and from work is not usually included among work-related activities for which the employer should assume liability. So, what do you do if you suffer injuries on your commute? One of the most crucial things to do is to seek the services of a workers’ compensation attorney.

At The Workers Compensation Attorney Group in Long Beach, California, our job is to passionately and represent you in your workers’ compensation claim. We will use our competence to try and navigate workers’ compensation laws to your advantage. We will apply our extensive experience and expertise to possibly obtain a favorable outcome for you.

In California, workers’ compensation insurance is a mandatory requirement for every employer with a minimum of one employee. However, an employer is not required to have insurance for independent contractors. California courts consider the level of control that the employer exercises over how the person performs their duties to determine whether a worker is an employee or an independent contractor.

Typically, an independent contractor is a worker who:

• Is in business for themselves
• Performs tasks that are not part of the company’s regular business and that require specialized skills
• Works from their own business premises or home
• Works for multiple clients
• Sets their own wage rates
• Provides their own equipment and tools for the work
• Determines when and how the work should be done. Although the client may give specifications and deadlines, the independent contractor decides how to do the job and how much time to spend on it.

On the contrary, an employee is someone over whom the company has control. An employee is defined under California Labor Code Section 3351 and Section 3357 as a worker who:

• Performs work that constitutes regular company business
• Has a regular schedule and work hours
• Works at the employer’s business premises
• Receives a salary or an hourly wage and is subject to the company’s discipline policies
• Receives training, directions, guidelines, and supervision from the company
• Is controlled by the company over how they perform their work

A work-related injury is an injury that occurs in the course of your employment or while you are performing a duty on your employer’s behalf. Most work-related injuries occur in the workplace. However, they may also occur in company-owned vehicles or other locations provided that you are engaged in a job-related activity.

Work-related injuries include but are not limited to injuries that occur during:

• Social events like company parties sponsored by your employer within or without company-owned property. A holiday party at a bar under the company’s sponsorship would be classified as a work-related activity. Workers’ compensation could cover injuries sustained at that party. However, if you go for drinks with your supervisor after work, that is not job-related because it is not officially sponsored by the company.
• Lunch break if you sustain the injury in company-owned premises such as the company’s cafeteria or grounds. An activity outside company premises is also job-related if it relates to your employment duties such as lunch at a restaurant with a client.
• If the injury involved alcohol that was provided at a company-sponsored event
• Mental sickness like depression and anxiety caused by the job
• Pre-existing conditions worsened in the course of your employment

Since there are numerous situations that may result in work-related injuries, there are two basic requirements for injuries to be considered work-related and covered by workers’ compensation. Coverage is possible if the injury:

• Arose out of employment (AOE)
• Occurred in the course of employment (COE)

During your commute, the second requirement is not met because you are not directly providing a service and your employer does not benefit. However, if you are providing a service and your employer benefits from your commute, that may be an exception.

Previously, many injured employees were denied workers’ compensation benefits for injuries suffered while ‘going and coming’ to work. The theory was that your employer does not receive direct benefits from your commute and should not compensate for injuries. This made the going and coming rule a broad exception that worked to employers’ advantage. However, the Workers’ Compensation Appeals Board expanded the compensation guidelines to give hope to injured employees.

Like many other areas in law, workers’ compensation has numerous rules and exceptions that are not expressly described in California's Labor Code or other statutes. These rules are a creation of the courts and are only found in case laws. The going and coming rule falls in this category and is detailed in the California Civil Jury Instructions, CACI No. 3724 – CACI No. 3727. It is based on the simple principle that if you are injured while traveling to or from your work, you may not recover for your injuries under workers’ compensation. In addition, any person that you injure during that commute is not eligible to recover for injuries against your employer. Although you could argue that your commute is work-related, that was not the intended purpose of the going and coming rule.

While there are employees who work from home or live at their job sites, most workers travel to work from their homes. They mostly use public transportation or their personal vehicles for the commute. Generally, your employer is liable for the damages you cause while using your personal vehicle for work-related purposes. However, the ‘going and coming rule’ excludes your employer from liability if the accident happens when you are traveling to or from work.

The rationale behind the going and coming rule is that you are not acting within your scope of employment during your regular commute. At that time, you are not rendering service to your employer, and your employer is not receiving any benefit from your actions. Therefore, any injury sustained at that time is not work-related as far as workers’ compensation is concerned.

Under California’s workers’ compensation law, the ‘going and coming rule’ seems simple. However, there are exceptions to the rule that may provide an avenue to obtain benefits even if the injury occurred in the process of commuting. Since the rule is established in case law and not by statute, the success of your case will be determined by the precedent set by the courts in similar cases.

While commuting, your employment is “suspended” because you are not offering any services to your employer. However, the going and coming rule is full of exceptions and applying it as a rule of the thumb can result in costly drawbacks and missed opportunities.

The Workers’ Compensation Appeals Board recognizes several exceptions to the going and coming rule. Your rights as an injured worker are protected more because there are a number of situations where your employer receives a direct benefit from your commute. If your attorney is able to prove that any of the exceptions are applicable in your case, you may qualify for benefits for an injury you sustained in the course of your commute.

1. The required vehicle exception

This exception has two main elements; first, providing your own vehicle to work is a condition for employment; second, your employer benefits from your vehicle being available for use in their business. If either element is present, then driving to and from work is within your scope of employment. Whichever of the two contexts is applicable, and your employer has compelled you to consent to the dangers associated with motor travel. They should, therefore, assume part of the liability and compensate you for injuries that you sustain during your commute.

2. Incidental benefit exception

This exception applies if your employer receives an incidental benefit from a vehicle that you possess and use, even if your actual use of the vehicle for job-related activities is not frequent. That commute may be regarded as part of your workday under the doctrine of respondeat superior liability. This doctrine holds that your employer is responsible for your actions within the scope of your employment. Your employer assumes liability because they create unavoidable risks as part of conducting business.

3. Personal comfort exception

You are likely to be compensated for injuries that occur while you are on a break but running an errand that benefits your employer. For example, if during your break you stop at a convenience store to pick snacks for your fellow employees, your employer benefits because other employees continue working while you pick the snacks on their behalf.

4. Commuting using a company car

While the ‘going and coming rule’ exempts driving your personal car to work, commuting using a company-owned vehicle is not exempted. However, the commute can be covered if it is only between two fixed locations, but mostly there are no such restrictions. Your attorney may also argue that if the car is emblazoned with the company's logo, it is a moving advertisement which is a work-related activity. However, this exception is not absolute.

5. Traveling as part of your regular job duties

If your regular duties at work involve traveling, that kind of travel is beyond commuting to a job site. These jobs include but are not limited to state troopers, bus drivers, truck drivers, and pilots. If you sustain an injury in the course of performing your main duties at work, it is eligible for coverage. However, it will not be covered if it occurred while you were driving to the site to start your shift. It is important to note that railroad injury claims are processed under the Federal Employers Liability Act (FELA).

6. Traveling between different job sites

Under workers’ compensation laws, the use of your personal vehicle to move to multiple job sites during your shift may be considered work-related. An example is a landscaping employee driving across different job sites or a technician driving between two office buildings.

7. Commercial Travel

All the time that you spend away on business trips is deemed to fall within your scope of employment. Even if you attend a conference or a business meeting for only eight working hours each day, all the time spent in travel is considered job-related.

8. Special assignments, errands, and missions

If you are on an errand for your employer while commuting, you are within the scope of your employment from when you begin the errand until you return from the errand, or you abandon it completely for personal reasons. Examples of tasks considered as special assignments include going to deposit cash in a bank, filing documents in court or even verifying whether a house is occupied or not.

Your employer is also liable for injuries related to extra tasks that you are assigned even if they are totally unrelated to your work. These tasks are known as special missions. Examples include a request by your manager to buy them coffee on your way to work or walking your boss’ dog.

Even exceptions can have exceptions to them. Although an employer can send you on special errands, you cannot order yourself to perform a special assignment or errand even if you have decision making authority. Even when it benefits your employer, there must be evidence to support your employer’s request for you to perform the errand.

9. No specific job site

If you work as a salesperson, a regional manager or a real estate agent, your job may require you to be in the office rarely. You might spend much time on the road or supervising multiple job sites. For these jobs, workers’ compensation coverage may include injuries occurring in the course of your travel.

10. Your employer pays for your commute

You may benefit from workers’ compensation coverage if your job includes a company car or a transportation pass.

11. Your employer pays for your travel time

If your employer pays you for time spent traveling to and from work, the general going and coming rule is not applicable, and you may have benefits available. If your employer usually compensates you for travel time through your salary or wages, your travel is deemed to be in the course of employment for the sake of establishing a respondeat superior.

However, there is a major difference between payments for your travel time and compensation for your travel expenses. If your employer compensates you for travel time because the time benefits them, it creates an exception to the going and coming rule. If your employer compensates you only for expenses such as gasoline and not for the time, the ‘going and coming rule’ applies.

12. Employer control during your commute

This exception usually applies when your employer demonstrates a certain level of control over you even while on your commute. If your employer expects you to perform work-related duties while commuting, the ‘going and coming rule’ does not apply. For example, as a police officer, you are required to be in uniform and offer emergency assistance even while driving your vehicle to or from work. Your employer controls you sufficiently while you commute; therefore, there is an exception since you are deemed to be within your scope of employment.

13. Injuries on company-owned property

Injuries that occur near or on a company-owned property including the parking lot may be compensated. However, the nature of the occurrence, the proximity and the control your employer exercises over the site are critical.

14. Foreseeable and substantial factors

If you engage in a work-related activity which is a significant and foreseeable factor in causing an accident, the going and coming rule will not be applied. An example is if you cause an accident while driving under the influence, on the way from a company party where alcohol was served. Similarly, if you are sent home as a result of a job-related injury and you are involved in an accident due to the injury, the same exception applies.

15. Special circumstances

There are many possible circumstances that may warrant an exception to the rule. For those situations, there is a catch-all under the law that includes injuries that are closely related to your job.

Workers’ compensation is intended to provide you with protection in a wide range of situations in which you may be injured at work. Under workers’ compensation laws:

• You may collect benefits for injuries that arise from duties related to your job
• Having been at work is not a prerequisite. The injury only needs to have been a direct result of your engagement in a work task or assignment.
• The employer does not need to be proven negligent to provide you with benefits. Similarly, negligence on your part does not disqualify you from collecting workers’ compensation benefits.

These rules on compensation allow you to collect benefits for injuries that result directly from tasks or duties at work. You may argue that going to work is a job-related task or duty and that it is a necessary element of your job. Although the argument is technically valid, workers’ compensation laws were not designed to provide you with this type of protection.

The ‘going and coming rule’ restricts the scope of coverage by workers’ compensation benefits to exclude injuries occurring while you are commuting. This, however, does not mean that you are ineligible for workers’ compensation benefits if you get into a car accident. If you suffer an injury while using a car as an element of your job, you may qualify to recover damages.

If your injury falls within the exceptions, you may receive compensation by filing a Workers’ Compensation claim. Application of the going and coming rule is similar in both workers’ compensation courts and traditional civil courts, though there are occasionally certain variations. However, both types of courts borrow and cite each other’s case law.

In addition, if you are involved in an accident within the scope or in the course of your employment, you and your employer may also be liable for injuries and damages to innocent third parties if the injuries arise from your negligence. Your employer may have a business liability insurance policy or substantial assets to cover the loss fully, while you might not.

For you and your attorney, the numerous exceptions provide additional, possible sources of coverage which your attorney can use to protect you from unnecessary personal exposure. However, for your employer and their liability carrier, the exceptions encourage a comprehensive evaluation of the actions surrounding your commute. The goal is to distinguish them from the presently accepted exceptions and develop a suitable strategy for litigation and determination.

Cases involving the going and coming rule and its exceptions are fact-specific. The laws are evolving with each new factual scenario, and new interpretations and applications are developing. How the rule is applied will depend on the circumstances of your case. If you need an experienced attorney to handle your claim in or around Long Beach, CA, call The Workers Compensation Attorney Group at 714-716-5933 to discuss the specifics of your case. We will listen to you and structure your claim in a way that will provide you with the best possible outcome. Our skilled attorneys are ready to litigate, argue and advocate on your behalf.