We all know the rules for coverage in New Jersey under the “premises rule,” the rule that replaced the former going-and-coming rule. N.J.S.A. 34:15-36 states that one is covered for workers' compensation purposes when he or she arrives at a place of employment owned or controlled by the employer. That is easy enough, but what about employees who do not report to the normal place of business of the employer, such as a carpenter who drives to a housing development every morning in a company truck?
The statute has different rules for those workers who report to job sites and not the normal office locations that most of us report to daily. It says this: “… the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer.” This sentence says two totally different things:
A. Employees who are paid travel time are covered traveling to and from a job site; this is the old portal-to-portal rule.
B. Employees who use an authorized vehicle may be covered when they are pursuing business authorized by the employer.
This is the only part of the statute in which the use of an employer authorized vehicle actually can turn the outcome of a case. Unfortunately, the statute does not explain what an employer authorized vehicle means. Clearly, it would cover a company car or business truck. But does it mean just a personal vehicle for which the employee gets reimbursed mileage? There is no answer to that question but the likely answer is probably not.
The more one focuses on this language regarding the use of an authorized vehicle, the more one realizes how broad this language is. It goes way beyond just those who are paid travel time. It suggests that travel time is not necessary at all for coverage when an employee is utilizing an employer authorized vehicle on business authorized by the employer and the drive is not to the office of the employer. What if the carpenter above drives to a Home Depot on a Saturday when he is not working to get sheetrock as requested by the supervisor? (Presumably this would be covered). Does it mean that the carpenter who drives to a job site in the morning from his or her home and does not receive paid travel time is covered portal-to-portal because the carpenter is using an employer authorized vehicle on business? The key words are “authorized vehicle on business authorized by the employer.” Again, there is no reported case on point.
Very few employees are actually paid travel time over and above their normal pay. But there are tens of thousands of New Jersey employees who use an authorized vehicle on business authorized by the employer. They often leave home in a company vehicle and report to a job site – and they may be able to argue successfully that they are then covered because they are using an authorized vehicle on business authorized by the employer. As noted above, there is no reported case on this issue.
The statute also says that an employee is covered when he or she is required by the employer to be away from the employer's place of employment. This is known as the “special mission” exception. So if a defense lawyer is required to go to court by the law firm, the trip is covered because the employee is required to be away from the law firm, which is the employer's place of employment. The question is this: is a job site considered the same as the employer's place of employment if the employer does not have a regular office or place of business in New Jersey? Many companies do not have a regular place of employment in New Jersey. There are insurance companies which have no office in New Jersey; there are health care companies which have no office in New Jersey; there are sales companies with no office in New Jersey. Employees of these companies work from their home.
Suppose a health care company has a nurse's aide who leaves her home and drives to the same patient's home every day for months using her personal vehicle? The nurse's aide has no office to report to in New Jersey and is not paid travel time. Is that drive covered for workers' compensation purposes? Is the nurse's aide engaged in routine travel to work (not covered) or is she covered because she is reporting to a job site? It would seem that the nurse's aide will have a hard time arguing that her personal vehicle is an “employer authorized vehicle” if it is not a company car and if she is not paid travel time. The nurse's aide will also have a hard time arguing that she is required to be away from her employer's place of business if there is no regular office where she works. The “job site” is where she works every day. So the nurse's aide may have to argue that her home is her place of employment. She may argue that since she is required to be away from her place of employment (her home), she should be covered on the ride to the patient's home. This is an interesting situation, and it is more and more common as employees are encouraged to work from home. Unfortunately, the statute is not particularly helpful in providing an answer.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers' Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers' compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e?mail at firstname.lastname@example.org.
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