This question has become more and more important as today’s work environment becomes increasingly mobile. This mobility lends to a less structured work place. There are an increasingly higher number of people working from home and with more flexible schedules than ever before. This increased freedom makes it more difficult to define when travels are for company business. The simple answer is that if the travel is at the direction or under control of the employer, then the employer can be held liable. Unfortunately, most situations are not so simple.
In Tennessee, a compensable worker’s compensation injury must “arise primarily out of and occur in the course and scope of employment.” An injury is deemed to arise primarily out of and in the course and scope of employment “only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes.” Tenn. Code Ann. 50- 6-102 (B) (14). An injury occurs in the course of employment if it takes place while the employee was performing a duty he or she was employed to perform. Fink v. Caudle, 856 S. W. 2d 952 (Tenn. Workers’ Comp. Panel 1993). The course of employment requirement focuses on the time, place, and circumstances of the injury. Saylor v Lakeway Trucking Inc, 181 S.W. 3d 314 (Tenn. 2005).
Is an Employer Responsible for Injury While Driving To and From Work?
Generally, injuries sustained by an employee while traveling to or from work are not considered within the course of employment unless they occur on the employer’s premises. This has become known as the going and coming rule, but with most rules, there comes exceptions.
Special Errand Rule: An employee may be compensated for an off-premises injury “while performing some special act, assignment or mission at the direction of the employer. If the travel is under the direction of the employer, then the employer can be held liable for an accident or injury that may occur. However, this liability may go away if the employee goes on a “frolic” not under the direction of the employer. This “frolic” can be described as travel that is not under the direction of the employer or off route or possibly a route that wasn’t the intent of the employer.
Tools with Travel Reimbursement: The Tennessee Supreme Court has also recognized an employee’s “need to carry his own carpentry tools in his truck, combined with a provision for travel reimbursement in the employment contract,” as sufficient to remove a case from the general rule of the “going and coming cases.” Smith v Royal Globe Ins. Co. 551 S.W. 2d 679 (Tenn. 1997). With this exception, there is an extra requirement where the journey itself is a substantial part of the services for which the worker was employed and compensated.
Traveling Employee: Another exception concerns the “traveling employee.” This is generally applied to employees who travel extensively to further the employer’s business, such as a traveling salesman. The travel is an integral part of the job and differs from an ordinary commuter’s travel, thereby exposing the traveling employee to greater risks. Howard v Cornerstone Med. Assoc., 54 S.W. 3d 238, 240 (Tenn. 2001). However, the drive to and from work still doesn’t cover the traveling employee if the employee is not compensated for that mileage or time.
Vehicles Owned by Employer: Where transportation is furnished by an employer as an incident of the employment, injuries suffered by an employee while going to or returning from work in the vehicle furnished by the employer and under the employer’s control arise out of and are within the course of the employment. Norwood v Tellico River Lumber Co., 244 S.W. 490,491 (Tenn. 1922). In the Norwood case from 1922, a worker died while riding an employer furnished horse to work. The holding was that the death was by reason of an accident arising out of and in the course of his employment. Id. This has been good Tennessee law ever since.
If you, as the employer, are paying for travel, whether it is time or mileage, chances are the company will be on the hook for liability for those travels. If your employee is traveling for company business or under the direction of the company, then the company is likely on the hook here as well. Best practice is to have clear cut policies in your employee handbook to address when the employee is “on the clock” when it comes to their travels. If you are furnishing vehicles to employees or paying for travels in their personal vehicles, it would be a good idea to run annual motor vehicle reports on those employees. Have them sign a consent form before you do so. If a person has a bad driving history, it’s not a good idea to have this person traveling for your business. This could lead to potential punitive damages if something does happen.