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An Introduction to the “Coming and Going” Rule
The "coming and going" rule has influenced workers’ compensation law in the state of Ohio for over 70 years. More likely than not, as an employer in Ohio, you have had a workers’ compensation claim filed against your company that was decided based upon this rule. The rule provides that an employee with a fixed place of employment, who is injured while traveling to or from the fixed place of employment, is not in the course and scope of employment because the requisite causal connection between the injury and the employment does not exist. Simply put, an employee injured while traveling to or from work generally does not have a compensable workers’ compensation claim. Of course, as will be discussed in this article, there are exceptions to the rule.The most important question that must be asked and answered is whether or not the injured worker is a "fixed situs" employee. The coming and going rule applies to fixed situs employees, or employees with a fixed place of employment. To determine if an employee has a fixed place of employment, the focus is on whether or not the employee commences substantial employment duties only after arriving at a specific and identifiable work place, as designated by the employer. The focus remains unchanged even though the employee may be reassigned to a different work place on a monthly, weekly, or even daily basis. An employee who periodically relocates to a different job site may still be considered to have a fixed place of employment. Of course, on the other hand, an employee who does not have a fixed place of employment would not be bound by the coming and going rule.
As noted above, Ohio courts have also consistently described three exceptions to the coming and going rule.
First, if the employee’s injury occurs within the "zone of employment," the coming and going rule will not apply. The zone of employment is the place of employment and the areas thereabout, including the means of ingress and egress, under the control of the employer. The zone of employment includes a parking lot owned/controlled by the employer and used exclusively by its employees.
Second, if the employment creates a "special hazard" that caused and/or contributed to the injury, the coming and going rule will not apply. The focus here is on whether or not the employee would have been at the location where the injury occurred, but for his employment, and whether or not the risk of injury is distinctive in nature and greater than the risk to the common public.
Third, if there is a causal connection between the employee’s injury and his employment based upon the "totality of the circumstances" surrounding the injury, the coming and going rule will not apply. The totality of the circumstances exception involves three distinct factors. The first factor is the proximity of the scene of the accident to the place of employment. The second factor is the degree of control the employer has over the scene of the accident. The third factor is the benefit the employer received from the employee’s presence at the scene of the accident.
These are all complicated factual and legal questions that need to be analyzed on a case-by-case basis. More often than not, Ohio caselaw will provide guidance as to whether or not an injury is compensable.
Please contact Chad Fine or any of the experienced workers’ compensation attorneys at RBS with questions concerning the "coming and going" rule, or with any other workers’ compensation questions you may have.