Traveling Employees and the Going and Coming Rule
In Delaware, an injured worker is entitled to workers’ compensation benefits for an injury arising out of and in the course of employment. The Industrial Accident Board and appellate courts interpreted this language as creating a “going and coming” rule, which prohibits compensation for injuries sustained while traveling to and from work. The rationale behind the rule is that an employee faces the same hazards as the general public during his or her daily commute. Application of the rule appears straight forward, however, several exceptions have been created.
The first is the dual-purpose exception. An employee’s injury may occur while serving both a private and business interest. The dual-purpose exception looks to whether it is the private or business interest that compels the need for travel. The second exception is the special errand exception. This exception involves travel with the added element of “special inconvenience, hazard or urgency.” The third exception is the compensation exception. This exception states that if the employee is paid for travel, the injury occurred while traveling is compensable. The fourth is the premises exception. This exception states that once the employee reaches the employer’s premises, his or her routine travel has ended. The final exception is the traveling employee exception. Somewhat related to the compensation exception, the traveling employee exception states that an employee who does not have a fixed place of employment or only a semi-fixed place of employment may not be subject to the going and coming rule.
The Supreme Court of the state of Delaware recently provided a two-step process for how the board should handle the traveling employee and the going and coming rule cases in Spellman v. Christiana Care Health Services. First, the board must review the employment contract to determine if the contractual terms resolve the dispute of whether the injury occurred in the course and scope of employment. If the contract is ambiguous or does not answer the question, the board will then consider the applicability of the going and coming rule.
Employers should be mindful of the manner in which employment contracts are drafted to address the “going and coming” rule, particularly where the employee will be subject to different types of travel. Employers would be best served in specifying how the parties view specific types of travel, i.e., whether that travel would arise out of and take place in the course of employment to remove any potential ambiguity and control risk.
For more information about this article, please contact Robert Hunt at 302.594.9780 or rhunt@fandpnet.com.
