An Important Loophole to the Non-Compensability of the “Going and Coming” Rule

Workers’ compensation law generally finds that an employee who has fixed hours and place of work cannot be compensated for any injuries incurred during a commute. It is viewed in this manner because an employee’s commute is not looked at as being within the course and scope of employment.

There are instances where the “going and coming” issue is disputed, and courts generally focus on an employee’s physical proximity to the workplace. The court will determine where the workplace begins which has been found to be the front door, the sidewalk, the parking lot or in at least one case,  a dangerous driving area, such as a sharp turn, that is very near to the worksite.

With court decisions placing so much focus on the “going and coming” aspect of an employee’s commute, employers often overlook the situations where employees didn’t have fixed hours or place of work.

When employment duties require an employee to routinely travel away a fixed worksite, say as an outside salesperson might, the coming and going rule that prevented compensability of injuries occurring away from the worksite are no longer applicable. In those situations, injuries occurring during travel to or from the employer location are generally covered under the ‘traveling employee’ rule.

Therefore, courts have found that the absence of fixed hours or place of work allows for employees to be compensated for injuries sustained during their commute. Smart employers know which employees have fixed hours and place of work and which do not and keep this information at hand.  They are then able to immediately communicate this information to their insurer allowing for a prompt and accurate compensability decision to be made.


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