Responsibility for Employee Injury, Quirky Question # 25 (West Coast Questions)
Quirky Question # 25:
We own and operate glass container manufacturing plants around the country, including Seattle. One of our employees resides in Pennsylvania, and regularly travels around the country to work as a foreman on glass furnace rebuilds. This particular employee began working for us in the 1980s and worked exclusively for us for about five years.
Under the union contract, we pay for travel to and from the work location for all out-of-state foremen, and provide a per diem of $78 per day for every day they are employed on a project, regardless of whether they are scheduled to work. We also provide employees with rental cars.
On a Sunday when he wasn’t scheduled to work, the employee foreman was walking across the street from his hotel to hear “Music in the Park” at a nearby location. As he was crossing the street, he was hit by a car and badly injured. He filed for workers’ compensation benefits. Although we agree that this accident is a terrible tragedy, we do not think his injury is covered. He wasn’t working at the time of the accident after all. Should we dispute the claim?
Not so fast.
Federal law and comparable statutes in 43 of the states share the language first used in the “British Compensation Act formula for determining what is a compensable workers’ compensation injury: an injury ‘arising out of and in the course of employment.’” Washington, however, has no requirement that an injury “arise out of” employment, only that the worker was within “the course of employment” when injured.
As the Washington Supreme Court in Ball-Foster Glass Container Company v. Giovanelli ruled on February 21, 2008, the case from which these facts arise, “[t]he language of the statute shows the intent of the Washington Legislature to adopt a broader and more comprehensive statute than other states.”
In line with that philosophy, the Giovanelli court held that the employee’s injury was covered by workers’ compensation pursuant to the “traveling employee doctrine.” This doctrine is also known as the “commercial traveler rule,” or the “continuous coverage rule” in other jurisdictions.
First, the Court determined that Mr. Giovanelli was in fact a ‘traveling employee’ because he was “one whose job requires travel from place to place or to a place from a permanent residence or the employee’s place of business.” As the court observed, Mr. Giovanelli’s “job assignment to Seattle required him to travel to a place away from his permanent residence.” The Court noted that the employer recognized this fact by reimbursing Mr. Giovanelli not only for his travel expenses, but for the journey to and from Seattle, and provided him a per diem during his entire stay in Seattle, including his days off.
It is well established in Washington and other jurisdictions (e.g., Utah, New Mexico, Oregon, Georgia and Texas) that traveling employees are generally considered to be in the course of employment continuously during the entire trip, except during a distinct departure on a personal errand. “The rationale for this extended coverage is that when travel is an essential part of employment, the risks associated with the necessity of eating, sleeping, and ministering to personal needs away from home are an incident of the employment even though the employee is not actually working at the time of injury.” Citing to another Washington case, the Court articulated the general rule as: “When employees are required by their employers to travel to distant jobsites, courts generally hold that they are within the course of their employment throughout the trip, unless they are pursuing a distinctly personal activity.” The Giovanelli court went further, holding that “…traveling employees are entitled to expanded coverage for travel-related injuries.”
The second issue was whether Mr. Giovanelli’s walk across the street in front of his hotel to a nearby park was a distinctly personal activity. The Court said the test of whether a worker has “left the course of employment” was “whether the employee was pursuing normal creature comforts and reasonably comprehended necessities or strictly personal amusement ventures.” Under the “‘personal comfort doctrine,’ a worker who engages in acts that minister to personal comfort does not thereby leave the course of employment unless the extent of the deviation is so substantial that an intent to abandon the job temporarily may be inferred or the method chosen is so unusual and unreasonable that the act cannot be considered incidental to the course of employment.” The doctrine applies to such acts as eating, resting, drinking, going to the bathroom, smoking and seeking fresh air, coolness or warmth.
Under Washington’s broader statute, the Court held that “[a] traveling employee is entitled to broader coverage [under the personal comfort doctrine] than a nontraveling employee … The nontraveling employee may satisfy his personal needs without leaving the comfort of home.” Accordingly, the Court held that “[i]n taking a Sunday stroll to the park on his single day off, Giovanelli did not ‘distinctly depart’ from the course of employment on a ‘personal errand.’ Neither the nature of his activity nor the manner in which he engaged in it was unreasonable or unusual. The risk of getting injured while crossing the street in front of his hotel during a walk to the park was a risk of his employment. Accordingly, he is entitled to compensation.” As the Supreme Court succinctly stated, “But for [Mr. Giovanelli’s] need to lodge away from home during his job assignment, he would not have been there [crossing the street].”
This expansion of workers’ compensation insurance coverage for traveling employees may increase insurance premiums for companies like Ball-Foster Glass, but the Washington Supreme Court left that issue to the Legislature. It will be interesting to see if other jurisdictions follow Washington’s lead.