Q & A: “Gray” areas of Workers’ Compensation
Q. “If an employee slips and falls in our parking lot, is this covered by Workers’ Compensation?”
A. A slip and fall in the parking lot owned or controlled by an employer requires an examination of the zone of employment, whether the injury is work-related and the “coming and going” rule to determine if it is covered by Workers’ Compensation. Although there are many exceptions, an employee is generally not considered to be in the course of employment when traveling to and from work, hence the going and coming rule. However, in determining Workers’ Compensation coverage, the zone of employment is considered to be the employer’s premises that includes but is not limited to the facilities, parking lot and sidewalks owned and controlled by the employer. An injury is work-related when it arises out of and in the course of employment. If the employee slipped and fell and was rightfully on the premises as the result of her/his employment, then the injury arose out of the and in the course of employment.
This, however, is not a cut and dry area of Workers’ Compensation and state courts vary in the interpretation of the “going and coming” rule. Therefore, an employer should review each case with its insurance agent and carrier to determine if the individual is covered or not.
Q. “I have an employee who hangs around for hours before and after work. If she gets hurt, what are my obligations?”
A. There is a disconcerting case pending in Georgia (Champion v. Pilgrim’s Pride, Court of Appeals of Georgia, 2007) that said a jury should decide whether an employee who arrived 78 minutes before the start of her shift and was run over by the employer’s truck and killed, was acting in the scope of her employment or there on her own time. If it is determined she was there on her own time, her estate can sue the employer directly and the damages could be significant.
To protect yourself, the best policy is to discourage loitering in written policy and practice.
Q. “Our company is expanding our overseas markets, necessitating travel for our salespeople to developing countries. Will these employees be covered by our domestic Workers’ Compensation policy?”
A. Generally, coverage would be provided at your state’s benefit levels when going to and from foreign countries. However, to ensure that your employees get the best possible care and protection when working outside the United States, an international policy should be considered as it provides additional coverage for repatriation (emergency medical treatment and transportation) and coverage for endemic disease.