Attorneys Break Down Florida's Going and Coming Rule

Sarasota, FL (WorkersCompensation.com) — Determining whether an employee’s injury is compensable can be tricky when it occurs away from the immediate worksite. Generally, accidents are not compensable when a worker is traveling to or from work. That said, there are many gray areas and instances when the injury would be compensable.

One such situation is when an employee is traveling between premises. “Coverage is not likely if the other location is not owned or controlled by the employer,” explained Bruce Burk, Florida attorney with Pallo, Marks, Hernandez, Gechijian, & DeMay, PA and a writer for WorkersCompensation.com. “However, coverage can exist if the second location is not owned or controlled by the employer but is designated by the employer as a location in which business occurs.”

Burk and attorney Jon Hodges explained the nuances of Florida’s Going and Coming Rule during a webinar hosted by WorkersCompensation.com as part of its Center for Education Excellence series.

Florida’s Going and Coming Rule states:

An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer. For the purposes of this subsection and not withstanding any other provisions of law to the contrary, an injury to a law enforcement officer as defined in s. 943.10(1), during the officer’s work period or while going to or coming from work in an official law enforcement vehicle, shall be presumed to be an injury arising out of and in the course of employment unless the injury occurred during a distinct deviation for a nonessential personal errand. If, however, the employer’s policy or the collective bargaining agreement that applies to the officer permits such deviations for nonessential errands, the injury shall be presumed to arise out of and in the course of employment.

Injuries that occur during recreation or social activities are not compensable — usually.  “But it can turn into a compensable incident when the employer requires attendance or pays for attendance and there is a direct benefit to the employer for having the event,” the attorneys explained. “For example, a bowling outing designed to improve morale and improve communication; the court may determine that could be a compensable accident.”

Another potentially gray area is Deviation from Employment, when the worker is injured while deviating from the course of employment, including leaving the employer’s premises. “It’s not compensable unless it is directed by the employer,” the attorneys said. To be compensable, the deviation must be “expressly approved by the employer,” or “is in response to an emergency and is designed to save life or property.”

Injuries that occur among traveling employees can be especially tricky in determining compensability. “The court looks at whether the activity was purely personal,” the attorneys said.

In one example, a man whose flight was delayed had an accident on his way to a nearby gym to exercise. Was that compensable? “Yes,” Burk said. “The court found this was for the claimant’s physical health and recreation. On its face it may look like a strong denial, but it was not.”

In another example, a worker staying at a hotel traveled 4 miles to dine. Even though there were restaurants at the hotel, the court said the injury that occurred was compensable due to the short traveling distance.

“When dealing with traveling employees, there has to be a substantial deviation for an injury to be found non-compensable,” the lawyers said.

An exception to the Going and Coming Rule is when the worker is doing a Special Errand. “An employee having identifiable time and space limits on his employment who makes an off-premises trip not normally within the course and scope of employment, may be brought within the course and scope of employment if the trip involves a special errand for the employer and the special inconvenience, hazard or urgency of making the trip and, further, its particular circumstances are sufficiently substantial to be viewed as an integral part of the employment,” the speakers explained.

“The key here is looking at the irregularity and sudden nature of the request. If worker is called at late hours to go to an employer location or do something for him, it looks like a special errand – the employment requires the person to go out of personal time,” they said. “The key is, does it benefit the employer.”

Employers may also be responsible for injuries sustained during trips with both a business and personal reason. “If the business purpose would have required the trip even if the personal purpose had not existed, then it would be compensable,” Burk and Hodges said.

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