Coming and Going Rule

Workers' compensation is designed to compensate employees who are injured at work. Thus, Section 26 of Chapter 152 provides that workers' compensation benefits shall be available to:

an employee who . . . receives a personal injury arising out of and in the course of his employment, or arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer.   

The general rule is that “the Compensation Act does not extend to cover employees going to and coming from their work.” Gwaltney's Case, 355 Mass. 333 (1969). This rule applies even where an employee might be required to use his car later in the day for business purposes. It is, however, usually limited to employees who have fixed hours of work in a fixed place of employment. Chernick's Case, 286 Mass. 168, 172 (1934).

Where an employee works outside the employee's premises, the Reviewing Board has focused on two factors to determine whether the “coming and going rule” should apply: 1) whether the employee was being paid at the time of the accident and 2) whether the employee was reimbursed for the cost of travel between her home and place of employment. Dow v. Intercity Homemaker Service, Inc., 3 Mass. Workers' Comp. Rep. 136 (1989). For example, in Dow, the employee went directly to the homes of the clients assigned to her and she was paid a travel allowance of $2.50 per week. This was intended to equal one half of the cost of public transportation from her home to her first stop and one half of the fare home from her last stop of the day. In the eyes of the Reviewing Board, it was this travel allowance that rendered the employee's injury compensable.

 

The decision stated:

The fundamental question facing the fact finder in the case at hand was this. Did the travel payment convert the employee's journey from her home to the home of her first client into part of her employment, or was she merely paid a transportation allowance which was nothing more than small, added compensation? The evidence supports the result reached by the single member that the employer, by paying travel expenses, impliedly agreed that the employment relationship began when the employee set foot on the public way heading toward her first call of the day.

Id. at 139, emphasis added.

 On the other hand, in Isokungos v. Seppela Aho Construction, 2 Mass. Workers' Comp. Rep. 154 (1988), the Reviewing Board denied benefits to an employee who traveled about forty-five miles each way to a fixed construction job site even though his employer paid a stipend for travel expenses when the work site was more than forty miles from home. The deciding factor in that case, which distinguished it from Dow, was the fact that there was a fixed place of employment.  

Another exception to the coming and going rule affects injuries that occur on the employer's property even if the employee was en route to or from work. This exemption is, however, limited and applies only where the employer has a legal responsibility to maintain the property. Barrett v. Suffolk County House of Correction, 10 Mass. Workers' Comp. Rep. P. 769 (1996). Thus, the fact that the employer customarily cleared and sanded a public sidewalk would not bring an injury sustained on that sidewalk under the Act. Id. Similarly, an injury sustained while an employee was walking from a public parking garage to his place of employment was not compensable even though the employee was likely to use his car later in the day for business. Gwaltney's Case, 355 Mass. 333 (1969).

Another relevant question under the coming and going rule is whether the employer required its employees to park in a particular public lot. For example, in Froment v. Karten's Jewelers, 5 Mass. Workers' Comp. Rep. 268 (1991), the employer did not permit its employees to park on the meters outside the store. The employer did, however, reserve parking spaces in a nearby garage for all employees wishing to park there. In addition, the employer would reimburse its employees one-half the monthly cost of parking at that garage. The employee, who was injured going from the parking garage to her office, filed a claim for compensation.  Rejecting this claim, the Reviewing Board noted that the employer's payment of one-half the cost of monthly parking “was a perk of her employment” and would not suffice to entitle her to workers' compensation benefits. Quoting the administrative judge, the decision stated:

Had the employee been injured in the employer's store, she would be entitled to weekly compensation. Had she been injured in a parking lot or garage, owned or in control of the employer, she would also be so entitled, although the injury occurred prior to the working day and prior to entering the store area.  Had the employ[er] mandated parking in the Kerwin Garage as a condition of employment, she would be entitled to compensation.  However, the evidence does not indicate, nor warrant, a finding that the employee could have deemed a requirement to exist as to mandatory parking in a specific location when only a limited number of her fellow employees parked at the Kerwin Garage and they, including the employee, alternated, each month, in picking up the monthly stickers.

 

Id. at 269-270.

The fact that an employee was taking a break will not necessarily bring him outside of the coming and going rule even if the injury occurred outside of his employer's premise.  The relevant inquiry here is whether or not at the time of injury, the employee was occupying himself in some manner incidental to his employment."  Kubera's Case, 320 Mass. 419, 421 (1946).  Likewise, benefits have been awarded to employees injured while returning from a business meeting or taking a break during an educational seminar.  

In Massachusetts, the “coming and going rule” will usually prohibit coverage for injuries that occur while an employee is traveling to or from a fixed place of employment.  There are, however, multiple exceptions to this rule for accidents that occur on the employer's property, during activities incidental to the employer's business or paid for by the employer.