Written By: Rebecca Gomez
From time to time, we have clients ask if they are responsible for the actions of their employees while they are commuting to and from work and whether or not workers’ compensation insurance would provide coverage. The answer is, “it depends.”
The Doctrine of Respondeat Superior holds an employer vicariously liable for their employee’s conduct committed while acting in the course and scope of his or her employment. Since the employer benefits from the employee’s conduct, policy goals of the doctrine are to prevent future injuries, guarantee victim’s compensation, and spread the losses equitably.
What does the Doctrine of Respondeat say about vehicle accidents caused by employees on their commutes going to or coming from work?
Courts developed the “Going and Coming Rule,” which states that an employer is generally not liable for traffic accidents during their employees commute to work [from home] and from work [to home]. An important factor that the courts consider is whether or not the employer obtained a benefit from the employee from their employee’s vehicle being at work.
Below are several exceptions to the “Going and Coming Rule” where your organization may be held liable for accidents caused on the employees commute to and from work:
- Special errand or assignment: If an employee, while commuting, is committing an errand for you, then the employee’s conduct and commute are within the scope and course of his or her employment.
- Employee’s commute benefits organization: If your organization incidentally benefits from the employee’s commute, that commute may become part of that employee’s workday.
- Vehicle used at work: If you require employees to drive to and from the workplace so their vehicle is available for the organization, then the drive to and from work is within the scope of employment, even if the actual use of the vehicle for work-related purposes is infrequent.
- Employer control during commute: If you have some control of over an employee’s commute, such as requiring an employee to wear a uniform and render services while driving to and from work, this is considered to be acting in the course and within the scope of employment.
- Pay for Commute: If your organization compensates your employee’s travel time to and from work, then your organization may be vicariously liable.
The “Going and Coming Rule” (and exceptions) also affects Workers’ Compensation benefits. The basic principle is, if an employee is coming from or going to work, any injuries the employee sustains are not covered by workers’ compensation, depending on the facts of the case. However, if an employee falls within one of the rule’s exceptions, that employee may receive workers’ compensation benefits for injuries sustained in their commute from or to work. The workers’ compensation benefits system is an administrative system with a wide array of special rules, which in the event of an injury, should be reviewed with your workers’ compensation attorney.
The “Going and Coming Rule” prevents employers from becoming automobile insurers. If your employees fall within the exception, it is best practice to have an effective risk management program that includes the following:
- Driver policy and guidelines
- Employees’ Motor Vehicle Report (MVR)
- Proof of employees’ automobile insurance
- Enroll in California Pull Notice Program
- Carry NOA Liability coverage to protect your organization (click on NOA Liability for more information)
- Driver safety Meetings/Webinars to further develop safety awareness
While there is no guarantee on preventing automobile accidents, a risk management program can help mitigate losses and keep insurance premiums from increasing.
Let us know if you have any questions or would like us to provide a quote for non-owned auto liability. We are here to help.
**This article is intended for informational purposes only and not to be construed as legal advice