The 'Going and Coming' Rule

Workers’ compensation covers two general types of injuries: single event and repeated events. Single events are your classic work injuries – e.g., falls. Repeated events refer to stress injuries, exposure to dangerous chemicals, or other injuries/illnesses that develop over time. For example, if you work in a coal mine – you might develop black lung or some sort of cancer; that could be a covered injury for workers’ compensation. Another classic example of repeated exposure is asbestos-based illnesses.

The standard to determine if your injury is covered by workers compensation is “arising out of employment and occurring during the course of employment.” This standard means two factors must be established for your claim to be covered:

1. The injury must arise out of your job; and

2. The injury must occur during your job.

In general, this rule means that if you were doing something for the benefit of your employer (even if it isn’t usually part of your job) – then your injury is covered by workers’ compensation. However, note that the rule is “and” that means your injury must both arise and occur during your job – it can’t just be one of the factors.

“Arising” Out of Employment

Arising means that you were doing something for the benefit of your employer when you were injured. For example, if you were performing one of your regular tasks – then that is “arising” from employment. If you were performing a job at the specific request of a manager or supervisor and are injured – that is also covered (even though it isn’t part of your ordinary duties). So, if you’re filling in for someone who is missing or running an errand for the company; injuries during those activities “arise” out of your employment.

“Occurring” During Employment

Occurring means that the injury happens during your job (as will be further discussed below; this is where the “coming and going” rule becomes more complex and could affect your coverage). For example, if you are on the clock or in the middle of performing a task and are injured – that is likely a covered injury as you were in the act of performing work for your employer. However, if you were injured during your lunch break (e.g., rough-housing or playing a pick-up game of basketball on a break and you’re injured – that may not be a covered injury as you were not injured while performing work).

Specific Situations

This section will go over some specific situations in which workers’ compensation coverage may become an issue.

Lunch Breaks: as briefly discussed above, your lunch break is usually not considered part of your job activities, and injuries that occur during your lunch break are typically not covered. For example, if you twist your ankle on the way to a food truck or the local deli – that probably isn’t a covered injury. However, if your boss instructs you to pick up her lunch and you’re injured – that could be considered a covered injury because (as discussed above – you are performing a task at the instruction of a supervisor).

Furthermore, if you are injured while on company property (i.e., the breakroom) – that also might be a covered injury, but it depends. For example, if you were injured while sitting and eating your lunch because a company chair or table collapsed on you – that is covered. You are acting within the accepted confines of the breakroom. However, if you engage in a game of tackle football in the breakroom and are injured – that probably isn’t a permitted activity in the breakroom, and subsequent injuries are not covered.

Company Events: are usually considered work-related, and therefore injuries sustained during these events are protected. It depends on the culture and expectation of the company. If you are expected to attend and participate in “team building” exercises – then your injuries arise out of and occur during work. However, if these events are voluntary and the company does not expect you to attend – then it may not be. These situations are extremely fact-specific, and it would be best to have the assistance of an attorney in these scenarios.

Travel: this section will be covered in more detail below but, in general, injuries sustained during your commute are not covered injuries subject to certain exceptions. Basically, if you are traveling to meet with clients or some other job-related activity; your injuries may be covered. But if you’re injured during your regular commute – your injuries are likely not covered.

Misconduct: these situations arise when you’re working at your job but engaging in activities that violate company policy or performing acts that are outside the scope of your job. However, your job description and the reality of your job are two different things and any rational person knows that you sometimes (or many times) have to do things at work that aren’t described in the employee handbook or are part of your job description.

However, just because you’re performing a task that is not ordinarily associated with your job – does not mean that you lose coverage. Rather, the test is if that act is in furtherance of your employment or for the benefit of your employer. For example, running to Kinko’s to run-off some copies is for the benefit of your employer. However, engaging in unsafe behavior – like playing on construction equipment – is not for the benefit of your employer and is likely not a covered injury.

A good rule is if you are breaking one of your company’s rules (e.g., the handbook, safety, etc.); then any injuries incurred from that activity are not covered. However, if you break the rule because your supervisor tells you to (or, more likely, heavily implies or forces you to); then your injury is likely covered.

A good rule is if you are breaking one of your company’s rules (e.g., the handbook, safety, etc.); then any injuries incurred from that activity are not covered. However, if you break the rule because your supervisor tells you to (or, more likely, heavily implies or forces you to); then your injury is likely covered.

With the various situations in mind, this section will examine the “going and coming” rule and how it relates to the coverage of your injuries. In general, the “going and coming” rule provides that injuries incurred during your commute are not covered for purposes of workers’ compensation. This result may seem idiosyncratic because the only reason you are commuting is to get to work, therefore, it is for the benefit of your employer. Similarly, if you are injured on the way home from work – that should also be covered because a significant factor contributing as to why you were in that situation was for the benefit of your employer.

The “going and coming” rule overcomes these presumptions by suspending your employer’s liability during your commute. However, again idiosyncratically, the rule is also filled with a variety of exceptions which could extend coverage. These next few sections will explore those exceptions and how they may apply to your injuries.

The Required Vehicle Exception

The major exception to the “coming and going” rule is the required vehicle exception which was carved out by the courts in the landmark 1972 decision Hinojosa v. WCAB. Mr. Hinojosa was a farm worker who was required to travel between several different farms for his job. He was a wage-employee who was paid for the time he spent traveling between the various farms. The company did not provide him with transportation; he was required to use his vehicle or find transportation in another vehicle. Well, you guessed it, the vehicle he was riding in crashed, and he was injured; he filed for workers’ compensation which the employer denied with the lawsuit resulting. The employer argued that Mr. Hinojosa was injured during his commute – he and the co-worker were heading home and not traveling between job sites. Accordingly, he was injured during his commute.

However, the court disagreed and determined that the nature of Mr. Hinojosa’s job (traveling between farms) requires him to transport himself between various locations for the benefit of the employer. The employer could have provided transportation but declined to, therefore, require Mr. Hinojosa to procure his mode of transportation. The car was a required condition of Mr. Hinojosa’s employment and therefore an implied obligation to bring it to and from work every day (think of the car like tools for a construction worker – required condition of employment to have tools). Therefore, the court found that the injury he sustained was an exception to the commuting rule which carved out the “required vehicle” exception.

Since the 1972 decision, the exception has been expanded to include a variety of workers including delivery drivers, service providers, construction workers, and other jobs which necessarily require transportation as part of the job. So, any job that requires you to furnish transportation to complete your work is an exception to the commuting rule. For example, traveling salespeople or construction workers need a vehicle as part of their job to get from client to client (or job site to job site) and therefore would fall within this exception.

The Exception to the Exception

Oh yes, there are exceptions to the exception because the courts didn’t think workers’ compensation was sufficiently complex. A series of recent cases decided in the past few years which narrowed the Hinojosa rule. You are not required to present direct and abundant evidence that a personal vehicle is a necessary condition of your employment. Specifically, your vehicle cannot be an incidental or tangential requirement – it must fulfill a core position of your job. The best way to understand this new standard is through a few examples.

Construction Worker: you are a construction worker on a large development which requires you to drive several miles between the various job sites. In this scenario, transportation is a required condition of your job because your duties take you to different locations regularly. Therefore, driving around is a standard part of doing your job.

Account Manager (Business): you are an account manager for an advertising company. Your job requires to respond to client inquiries and questions, keep clients happy and solicit new business. As part of your job, you occasionally (but regularly) travel to work lunches with clients and to pitch meetings to solicit new business. A lot of your job is sedentary – stuck at your desk answering calls and devising pitch strategies and occasionally traveling to meet a client. In this scenario, transportation can be important, but it isn’t a core part of your job. You may still qualify for the exception, but it depends on the facts.

Veterinarian Urban vs. Rural: another illuminating example is a comparison between rural and urban veterinarians. Urban vets stay in their animal hospital, and clients come to them. You serve cats, dogs, birds, and other typical vanity animals that don’t serve “work” purposes. You may make the occasional house call but most of your time is spent in the animal hospital. Contrast the urban veterinarian with a rural vet who serves working animals and often travels to various farms and ranches to treat animals. These working animals are large and are not easily transported; therefore, the rural vet spends a lot of the time on the road meeting with clients and treating their animals. The urban vet probably would not meet the required vehicle exception whereas the rural vet would because transportation is an inherent part of the job.

The Special Errand Exception

As briefly covered above, if you are sent on a special errand or are required to attend a work function outside of your regular job functions – then transportation to and from that event (including if you are heading there from home or back home after the event) is a covered event for workers’ compensation. Another typical example is, if you are heading to work and get a call from your boss asking you to pick up coffee for the office, that is a special errand and any injuries incurred during your commute are a covered event.

However, an exception to this rule (yes, another exception to the exception) is if you have decision-making authority. Taking that same example from above, if you are the manager and decide to grab coffee for the office and you are injured – you did not “order” yourself to perform a special errand thus creating a covered event. Essentially, you must have been ordered by a supervisor to perform the errand for the event to be covered.

Employer Control

Another exception is if your employer exercises control over you – even during your commute. This is a narrow exception and is ordinarily applied to emergency response officers, peace officers, firefighters, and other employees who are expected to render aid while during their commute (i.e., you’re on the job when you’re in uniform or required to help people if in distress even if you’re not on a dispatch). This situation is also fact-specific and requires review of your obligations as an employee – it could necessitate a review of laws regulating your job or your employer’s policies.

Compensated Commute Time

Similar to employer control of commute time, if your employer compensates you for your commute then any injuries suffered are likely to be considered in the course of your employment and are covered by workers’ compensation. However, there is a distinction between your employer compensating you for commute time and your employer covering traveling expenses. For example, if your employer pays for your commute time for the benefit of the employer (e.g., as an enticement to attract new workers); that is likely an exception to the coming and going rule. Conversely, if your employer offers compensation for your travel expenses (like a per diem) that is not likely an exception to the coming and going rule. Therefore, the distinction (and it is a subtle distinction), is whether your employer compensates you for your time versus reimburses you for travel expenses.

Foreseeability of Activity

Another important exception is whether the activity or travel was a foreseeable and substantial factor which resulted in your injury or accident. A common example that comes up are workers who drive home drunk after a company party and are involved in an accident. The workers who are injured as a result of drinking at the company party can likely successfully argue an exception to the coming and going rule and receive workers’ compensation coverage for their injuries (up to and including death benefits for their family members). Moreover, if you’re involved in an accident on the way home from work after you sustain an injury at work (i.e., a separate workers’ compensable injury); that subsequent injury during your drive home may also be covered because it is foreseeable that you would be involved in an accident.

Injury in Parking Lot:

If you are injured in the parking lot (or near your employer’s building) on property owned by the company; that could result in a covered injury. For example, if your employer exercises control over the parking lot and your employee duties activate when you are on company property, it is possible that any injury you sustain from your car to your work could be covered by workers’ compensation. However, as stated many times before, it depends on the factual circumstances of your injury and your employer’s control over the area.

Company Car:

Some cases have also found that if you are required to drive a company car – your injuries sustained while operating that car could also be a covered injury.

Personal Comfort Condoned by Employer:

In a recent case, Bloxham v. Lithia Ford, the court found a narrow exception for a worker who was injured in a car crash when he was on break but stopped at a convenience store to pick up snacks, soda, coffee, and other treats to share with co-workers. The court created this exception because, while not an explicit order to pick up snacks to share, the workers at this particular employer regularly engaged in this activity – so it was an understood custom.

In short, if your employer exerts control over you during your commute, then it is possible your injuries could be covered by workers’ compensation. Your employer could exert control by dictating how you act; determining what vehicle you drive; or requiring you to use a vehicle to accomplish your duties. The essential test is whether your employer controls you on your commute.

According to a RAND study published in 2018 for the State of California, injured workers who retain the assistance of counsel through the workers’ compensation process were 40 percent more likely to receive the return to work and supplemental job displacement benefits. Workers’ compensation is an entirely different set of legal principles, courts, and rules in California. The attorneys at the Workers Compensation Attorney Law Firm know the system in and out and can help you navigate these complicated rules. You can call them today at 310-956-4277. The Workers Compensation Attorney Law Firm serves the entire LA basin and beyond from Long Beach and the South Bay to Topanga, Thousand Oaks, and east into Downey, up to Burbank and past the Valley. If you were injured on the job and need help from experienced workers’ compensation attorneys, then don’t hesitate to call our Los Angeles Workers Compensation Attorney now!