What are the Exceptions to the ‘Coming and Going Rule’ in Delaware?

Do You Know the Rule?

Under the “coming and going rule,” workers in Delaware and other states generally are not entitled to workers’ compensation for injuries that happen on their way to work or on their way home from work. This is because, for an injury to be compensable, it must have arisen through an accident occurring out of and in the course of employment. Basically, the injury must bear some causal relationship to the employee’s job duties.

Delaware's various exceptions to the coming and going rule arise from case law, not statute. They essentially are part of the process of determining whether the employment contract contemplated that the employee's travel when he was injured should be regarded as work-related .

To establish whether the coming and going rule applies, the workers’ compensation board or court will (1) look at the terms of the written contract. If that written contract doesn’t answer the question of whether an employee’s injury during travel is employment-related, the board or court will then (2) determine whether any of the exceptions apply.

In Delaware, there several exceptions to the coming and going rule:

Dual Purpose

The employee’s travel serves both a business and personal interest. If it is the business interest that necessitated the travel, then the coming and going rule may not apply.

Special Errand

The going and coming rule does not apply where the accident occurs during a work-related trip that, because of the special inconvenience, hazard, or urgency of taking the trip, rises to the level of a special errand that is integral to the work itself.

Compensation

Under this exception, an injury incurred during travel is not subject to the coming and going rule if the employer paid the employee an identifiable amount as compensation for time spent traveling to and from work.

Premises

Once the employee reaches the employer’s premises, he is no longer considered to be traveling to or from work, and thus the coming and going rule does not apply. An employee is not barred from recovering workers' compensation where the employee's injury occurs on the employer's premises. This is true even if the work day has already ended or has not yet officially started.

Traveling Employee

The coming and going rule generally does not apply to an employee who lacks a fixed place of employment and where travel is a substantial part of her employment. The rationale for this exception is that while traveling to and from her assigned work sites, the employee is furthering her employer's business interests.

Lessons for Employers

Draft employment contracts in such a way as to specify activities that fall under the coming and going rule and those activities that may be compensable because they fall under an exception. This is, of course, especially important for jobs that require work-related travel.

Use internal travel policies and employee manuals to help employees understand the company’s policies concerning which activities outside of the office are considered work-related. Include examples of activities. Consider specifying, for example, whether traveling from a hotel to a restaurant while attending an out-of-town conference is or is not work-related.

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