The Coming and Going Rule

 

In New York Workers’ Compensation, injuries that occur on the way to or from work are generally not compensable and should be denied.  This rule is applicable when the employee has fixed hours and a fixed place of work.  However, when the accident occurs near the claimant's place of employment, there develops a “gray area” where the “risks of street travel merge with the risks associated with employment.” Under these circumstances, injuries will only be compensable if the claimant is able to prove that there was (1) a special hazard posed at the accident location and (2) a close association of the access route with the premises.  A "special hazard" is a "particular risk not shared by the public generally.”  In addition, the claimant must prove that there is a reasonable nexus between the risk to which a claimant was exposed and the employment.

 

The “gray area” most commonly consists of public walkways, sidewalks or parking lots near the employer’s premises. For such accidents, the Court will consider different factors to determine whether the accident is compensable. Such factors include: (1) distance from employer premises; (2) whether the accident location was owned, operated, or maintained by the employer; (3) whether the accident location posed a risk of hazard shared by the general public; (4) whether the claimant was encouraged by the employer to use the specific route where the accident occurred; and (5) whether the route taken by the claimant existed solely to provide access to his/her workplace.

 

It should be noted that these factors are not used by the Court for claimants that are considered “outside employees.” Outside employees do not have a fixed place of employment and are generally required to travel between various job locations. When outside employees are injured while transit to or from a location off the employer's premises, the Court will consider different factors to determine whether the accident is compensable. The Court will consider: (1) whether the claimant’s presence at the accident location served both a business purpose, (2) whether the employer derived a benefit from the errand the claimant was performing at the time of accident.  The accident will not be deemed compensable if the claimant was engaging in a personal errand that serves no benefit to the employer.

 

For more information on the “coming and going rule,” please contact Usra Hussain at uhussain@bhlfirm.com.