By Frank Ferreri, April 15, 2024
For those of us who don’t work remotely 100 percent of the time, getting to and from work, with possible stops along the way, comes with the risk of getting injured.
To handle the “what ifs” in the world of going to and coming home from work, workers’ compensation law across the country, and in the Federal government, has developed what’s known as the “going and coming” rule, which is also called the “coming and going” rule, depending on which judge you read.
The Employees’ Compensation Appeals Board (ECAB), following the lead of state and Federal courts around the country, has maintained that for employees having fixed hours and a place of work, injuries occurring off premises while going to and coming from work before or after work hours or during a lunch break are not compensable. However, there are exceptions, some of which we explore below.
Special Errand Rule
An employee who has identifiable time and space limits on her employment makes an off-premises journey that would normally not be covered under the going and coming rule. However, if the trouble and time of making the journey or the special inconvenience, hazard, or urgency of making it in the particular circumstances is sufficiently substantial, it can be viewed as an integral part of the service itself. See A. Larson, The Law of Workers’ Compensation § 13.00 (2007).
Case example
N.J. and Department of Justice, Federal Bureau of Prisons Metropolitan Detention Center, No. 20-1148 (ECAB 2021). A corrections officer filed a CA-1, alleging she was injured in a motor vehicle accident while in the performance of duty. She was driving to firearms training when a large tree branch fell through the windshield and roof of her vehicle just before she was rear-ended by a speeding car.
OWCP denied her claim, finding that the officer’s injury did not occur during the course of her employment. ECAB disagreed, noting the special errand exception was met because:
- She was expected to perform her official duties on requalifying with her required weapons.
- A daily assignment sheet demonstrated that she was assigned to perform firearms training on the day of the employment incident.
- An assistant human resources manager indicated that the officer’s firearms training was a yearly requirement associated with her employment duties.
Rural Carrier Exception
When an employee is required to bring along her own car, truck, or motorcycle for use during the working day, the trip to and from work is, by that fact alone, considered within the course of employment. See Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013). Rural carriers may use their own vehicles to deliver their routes, which is a benefit to the agency. The carriers may be deemed in the performance of their duties when they are driving their vehicles to and from their route.
Case example
J.C. and U.S. Postal Service, Kentuckiana District, No. 17-0995 (ECAB 2017). A rural carrier, who was working as a supervisor of customer services, alleged she injured her shoulders and neck when she was involved in a motor vehicle accident around 7:40 a.m. on the day in issue. OWCP decided the carrier was not in the performance of duty when injured.
On appeal, ECAB agreed. The board noted the carrier was not driving her vehicle to work as a rural carrier but for her role as an acting supervisor. “Regardless of whether appellant used her private vehicle while acting as a rural carrier, she was not scheduled to perform the task of delivering mail,” ECAB wrote. “Rather, she was driving to the Benton, Kentucky, post office where she had been an acting supervisor for four months.”
Workers on Travel Status
FECA covers an employee 24 hours a day when the employee is on travel status and engaged in activities essential or incidental to such duties.
Case example
J.N. and Department of Homeland Security, Transportation Security Administration, No. 14-1764 (ECAB 2015). An air marshal alleged he sustained a cervical spine fracture, a collapsed right lung, a concussion, numerous lacerations, high blood loss, and extensive bruising when he was involved in a motor vehicle accident while en route from his home to an offsite training class. The air marshal alleged he was on the clock and that by reporting directly to the training location, he avoided three hours of overtime pay status for the agency.
OWCP disagreed, finding the air marshal was not in the performance of duty. ECAB affirmed. According to the Board, the air marshal was permitted to drive his personal vehicle to the training session for personal convenience, and precedent cases established that air marshals are not in travel status while commuting to work.
“His travel to attend training was no more for the benefit of the employer than any other worker’s commute,” ECAB wrote. “Appellant’s decision to travel to the training in his personal vehicle was by his own choice, not by any mandate of the employer.”
Premises Rule
This exception applies just about everywhere in U.S. workers’ compensation law and covers situations where an employee isn’t on the clock or on the job yet but experiences an injury on the employer’s premises. A common locus for premises rule cases is a parking lot, and the premises doctrine is applied to those cases where it is affirmatively demonstrated that the employer owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees. Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).
Case example
Hartman and Social Security Administration, Office of Hearings and Appeals, No. 01-749 (ECAB 2004). A legal assistant was in the underground parking garage after a power outage led to all employees being released from work. She fell over a bicycle rack and injured her hands, shoulders, knees, legs, back, and neck. OWCP applied the going and coming rule to reject the assistant’s claim. It noted her injury did not fall within an exception to the rule that injuries sustained by employees having fixed hours and places of work while going to or coming from the job are not compensable.
ECAB noted the premises rule has a close relative — the “special hazard” rule. However, it didn’t apply here because “the hazard encountered by appellant was not an exceptional or uncommon hazard.” ECAB likened the darkened parking garage to dangers that arose in other cases in which a special hazard exception did not apply, including:
- An assault on the streets while going to work. Jimmie D. Harris, Sr., 44 ECAB 997 (1993).
- Wax on a public plaza immediately outside the only exit. Sallie B. Wynecoff, 37 ECAB 728 (1986).
- A traffic accident resulting from a backup for a security checkpoint. Bettie J. Broadway, 44 ECAB 265 (1992).
- An icy sidewalk. Denise A. Curry, 51 ECAB 158 (1999).
In each of these cases, ECAB found the hazards were common to all travelers.
Proximity Exception
Treated as a subcategory of the premises rule and dependent on the special hazard exception, the proximity exception stands for the principle that the course of employment should extend to an injury that occurs at a point where the employee is within the range of dangers associated with the employment. There must be a special hazard before the proximity rule kicks in.
Case example
D.C. and U.S. Postal Service, Post Office, No. 08-1782 (ECAB 2009). A custodian injured his right wrist when he “fell on ice at a curb” immediately following his work shift. OWCP rejected the claim explaining that, although the USPS was responsible under local law for keeping the sidewalk clear of ice and snow, the sidewalk was not part of the agency’s premises.
ECAB agreed because the sidewalk in question was a public sidewalk. The custodian did not present evidence the sidewalk was used exclusively or principally by agency employees for the convenience of the agency. There are other exceptions that are generally recognized as well, including in the following scenarios:
- Where employment requires the employee to travel on the highways.
- Where the employer contracts to and does furnish transportation to and from work.
- Where the employee is subject to emergency calls, as in the case of a firefighter.
- Where the employee uses the highway to do something incidental to her employment with the knowledge and approval of the employer.
- Where the employee is required to travel during a curfew established by local, municipal, or state authorities because of civil disturbances or other reasons.
What does all this mean for an agency? It’s hard to predict how a case will go, and most results depend on case-specific facts. However, as a basic concept, the more an employee’s coming or going is to do something for the agency rather than herself, the more likely it will be FECA-covered. [email protected]
