“Going and coming” and other workers’ comp questions
July 19, 2013
Article courtesy of SBAM Approved Partner ASE
By Anthony Kaylin
Here is the question of the day: An employee is injured in an accident driving to work in the morning. Is that employee eligible for workers’ compensation?
Generally, injuries sustained by an employee while going to and coming from work are not compensable under the worker’s compensation act. However, any of these circumstances that could make the injury compensable under the law:
- Where the employee is on a special mission for the employer
- Where the employer derives a special benefit from the employee’s activity at the time of the injury
- Where the employer paid for or furnished employee transportation as part of the employment contract
- Where the travel comprised a dual purpose combining employment-related business needs with the personal activity of the employee
- Where the employment subjected the employee to excessive exposure to traffic risks
- Where the travel took place as a result of a split-shift working schedule or employment requiring a similar irregular, non-fixed working schedule.
If the employee is driving his or her own car, the answer would likely be no. However, if the employee is driving an employer’s vehicle, the answer is probably yes. The courts have ruled that in those situations the employer paid for or furnished employee transportation and therefore the employee is covered under workers compensation.
What if the employee is driving home from work and falls asleep because of work? An “exhausted driver” who falls asleep driving home from work is generally not entitled to workers compensation. On the other hand, if the worker fell asleep because of working a double shift because of the employer’s needs, the employee may be entitled to it.
Or what if a worker is driving during work time for the employer but deviates—runs a personal errand, for example? During the errand run, the employee is injured in a car accident. Is the employee covered? Likely not.
Take a different scenario. Employees are doing “horseplay” at work. One employee gets injured. Is that employee entitled to worker’s compensation?
The courts have recognized that a certain amount of “horseplay” is to be expected on most jobs, and if a worker is injured as a result of such horseplay, that injury is compensable. However, the courts have also held that there are limits to these circumstances. If the worker is injured as a result of his or her “intentional and willful misconduct,” there will be no benefit entitlement.
Here is another: An employee gets into a fight and is injured. If that employee was the aggressor, the employee is unlikely to be eligible. If protecting himself or herself, maybe eligible. Moreover, the courts have held that if an injury results from a violation of a rule that is clearly announced and regularly enforced by the employer, the worker is also not entitled to worker’s comp benefits.
Michigan courts have ruled that if an injury results from an activity “. . . the major purpose of which is social or recreational,” the employee would not be covered under the law. So will the employee who is injured at the company picnic or office Christmas party be covered? Probably not. On the other hand, a salesperson who was entertaining a prospective client at such an event might be covered.
So here is the last question of the day: An employee is working at the employer’s site and a bee that came in through a door stings him or her. Would that employee be entitled to workers compensation? Would it make a difference if the employee suffers an allergic reaction?
The likelihood is no to both questions, because it is like being in a public place. As long as there is no increased risk of injury from a bee sting because of work, that is. But the employer must be vigilant to make sure the employee is not be placed in a position of increased risk.
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