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Industry Insights

Carrasco: The Going and Coming Rule in the Time of the Pandemic

  • State: California

As with most things in the world of workers' compensation, the rules and regulations are clearly set forth in the California Labor Code. However, sometimes the rules are not codified but are formed over time through case law. Such is the case with the common “going and coming” rule.

Eva L. Carrasco

Eva L. Carrasco

The “going and coming” rule as we know it in California mandates that an employer is not responsible for injuries that occur to an employee on her way going to or coming from work during a regular commute. And as with any rule in the world of the law, there are numerous exceptions that apply as follows:

  • Commuting in a company car: often covered, depending on the state.
  • Required vehicle exception (also known as traveling to multiple job sites): Employee required to use own vehicle to travel between separate work sites during the workday.
  • Personal comfort exception: Employee injured while engaged in a personal errand and provided employer with a benefit (such as brought back cigarettes or lunch for employer).
  • Parking lot injuries: The proximity and control held by an employer over the lot will usually control.

But what does this mean in our mid-pandemic world where more than half of the American working population is now working remotely from home? Will the going and coming rule be no more? Or will it (as with any case law-driven rule) evolve to redefine an employee’s daily commute? Or will there be additional exceptions, perhaps not involving a vehicle at all, but in redefining the telecommute?

We expect a massive reduction in claims, as commuting to and from work in a vehicle is slowly becoming a thing of the past. But then what happens when an employee is now injured in the home during work hours? Certainly, we can expect a modification of the standard of proof upon an employee. But what else?

Before the pandemic, telecommuting had been slower to take hold than many previously predicted. But now that the pandemic has catapulted us into it, forcing several industries to adjust to learning how to use remote technology. For example, in the legal field, conducting depositions via televideo platforms like Zoom has become the new norm, and expediting document sharing through electronic means has expanded on a much larger scale.

As a result, we may see a more permanent shift toward telecommuting, even post-pandemic. On the plus side of things, employees seem to enjoy and prefer working from home. It’s better for the environment in reducing emissions and office costs, and it helps balance work and family roles in certain instances.

In conclusion, it’s fair to assume that the going and coming disputes may decline as commutes are either eliminated or redefined in the age of telecommuting.

If you’re interested in reading more about workers’ compensation case law involving telecommuters, check out partner Michael Burns’ June 2019 pre-pandemic blog entry that examined this topic.

Eva L. Carrasco is an associate attorney at Bradford & Barthel’s Los Angeles office. This entry from Bradford & Barthel's blog appears with permission.

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