The “Going and Coming Rule” and Its Exceptions in Workers’ Compensation Cases

The general rule is that commuting to and from work is not considered a work activity and the employer is not liable for injuries that occur during regular commuting. The reason behind this is that such travel is not considered part of the employment’s regular “course of employment”.

In Hinojosa v. WCAB (1972) 37 CCC 734, the court held an extraordinary employment situation dependent upon transportation from one place of work to another so that transportation is a requisite of employment can operate as an exception to the going and coming rule. Some exceptions to the “going and coming” may include travel involving incidental benefit to the employer, uncommon to ordinary members of the workforce. The court recognizes that the “rule” was “subject to many exceptions” and that each case should be adjudged based on its unique facts

Generally, commuting to and from work is generally not considered a work activity, and the employer is not liable for injuries sustained during regular commuting. However, some exceptions may apply, such as work missions, performing job duties while commuting, commuting in a company car, or traveling which is a significant part of the job duties. On the other hand, an employee may be injured while addressing personal needs, where there is no intent to benefit the employer, even during working hours or at the workplace in which case such an injury may not be compensable.

If the employer requires the employee to perform job duties while commuting, this might be an exception to the going and coming rule. One consideration is whether the employer directly or indirectly benefits from the employee’s activity. If the job requires the employee to visit different sites, the employer may be liable for travel incidents during the commute, provided there is a benefit to the employer. Remote jobs and working from home present another issue as determining employer liability for injuries occurring while working remotely is complex under the going-and-coming legal concept.

Applicability of the going and coming rule and its exceptions varies from case-to-case and the trier of fact will determine if the injury is compensable and falls under any of the applicable exceptions. As, mentioned above, exceptions to the going and coming rule include special mission activity undertaken at the request or invitation of the employer. Another exception is the premises line rule which determines the physical boundary for coverage based on the location of an employee where an injury occurs. Once the employee crosses the boundary onto his/her employer’s premises, he/she is considered to be within the course of their employment and covered by workers’ compensation.

Another exception to the going and coming rule includes the commercial traveler rule with certain protections for employees who travel as part of their job. A commercial traveler is covered for workers’ compensation for the travel itself as well as other aspects of the trip reasonably necessary for the sustenance, comfort and safety of the employee. And, another exception includes the special risk doctrine extending the scope of compensable injuries to jobs that put the employee in a position of risk greater than what the general public might face. Also known as the “zone of danger”.

The question of whether the employee should be compensated for a travel related injury turns on the relevance of the so-called “going and coming rule” and whether any exceptions to that rule apply. Based on the going-and-coming rule, injuries that occur while commuting to and from work are non-compensable unless exceptions apply. If an exception to the general rule applies, then the employer might be liable for the injury.

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