The “Coming and Going” Rule in New York

The “Coming-and-Going” rule under New YorkWorkers’ Compensation Law 

Under the Workers’ Compensation Law there is a presumption that if an accident occurs in the course of employment it is presumed to arise out the employment. The “coming and going” rule under the Workers’ Compensation Law states that employees are not deemed to be in the course of their employment when they are traveling to-and from-work. Matter of Neacosia v. New York Power Authority, 85 NY2d 471 (N.Y. App. Div. 3d Dep’t 1995); Matter of Davis v. Labor Ready, 69 A.D.3d 1214, 1215 (N.Y. App. Div. 3d Dep’t 2010). Thus, an injury that occurs during such commuting activities is typically not compensable.

The test for determining whether specific activities are within the scope of employment or purely personal is whether the activities are both reasonable and sufficiently work related under the circumstances. Matter of Neacosia v. New York Power Authority, 85 NY2d 471 (N.Y. App. Div. 3d Dep’t 1995).

However, there are exceptions to the “coming and going” rule such as for an outside employee without a fixed worksite, an employee who has engaged in travel for both business and personal purposes (dual purpose), an employee whose home serves as an additional place of employment, and an employee who has embarked on a “special errand” – – where the employee’s travel serves a purpose of the employer. Matter of Davis v. Labor Ready, 69 A.D.3d 1214, 1215 (N.Y. App. Div. 3d Dep’t 2010).

In addition, the Workers’ Compensation Board and Appellate Division Third Department have found cases compensable where employees are travelling to and from work but did not fall within the above-mentioned exceptions. In the Court of Appeals case, In the Matter of Holcomb v. Daily News, the award of death benefits was upheld where the claimant/ employee was on his way to work, hailed the driver of one of his employer’s passing delivery trucks who picked the claimant up and was fatally injured during the ride to work. Matter of Holcomb v. Daily News, 45 N.Y.2d 602 (1978).  The Court stated that “[a]n employer who assumes by custom or contract the responsibility to transport [its] employees must likewise bear the responsibility for the risks encountered in connection with the transportation” (Id. at 606). Specifically, the Court of Appeals found that there was a sufficient basis for the award of workers’ compensation death benefits, upholding the findings that transporting employees to and from work was a common practice, that the employer essentially acquiesced in this course of conduct, and that such a course of conduct provided a benefit to the employer. Therefore, where it is common practice that the employer assumes the responsibility to transport its employees to and from the office or furnishes such transportation, if an employee is injured during that transportation to and from work, the Workers’ Compensation Board will likely find it to be a compensable claim.

In that regard, the Workers’ Compensation Board and Appellate Division Third Department have particularly found workers’ compensation cases compensable where the employer reimburses the claimant for travel to and from work. For example, In the Matter of Coressmann v R.J. Moran & Sons, Inc., the employer paid its employees a set fee for travel expenses to make the trip to the worksite. The claimant’s decedent was killed in a motor vehicle accident on his way home from work. In the Matter of Coressmann v R.J. Moran & Sons, Inc., 4 A.D.2d 712 (N.Y. App. Div. 3d Dep’t 1957). On appeal the Appellate Division Third Department found that the travel money provided to each employee was an inducement, rather than merely a fringe benefit, and that the claimant’s accident therefore arose out of and in the course of employment. In finding the death to be compensable, the Appellate Division stated, “[i]t is well established and conceded by both parties that had the employer provided the actual transportation and provided a vehicle therefore, the employment would have continued during the transportation. Even when the employer does not furnish the means of transportation it has been held that employment continues throughout the transportation where the parties to the employment contract so agree” (Id. at 713). The Court went on to state, “[w]here the work is some distance from the employee’s home and the expenses of transportation are paid by the employer, it has been held that the act of traveling to and from work was within the employment” Id. Therefore, where the worksite is some distance from the employee’s home and the expenses of transportation are paid for by the employer, if an employee is injured during the transportation to and from work the Workers’ Compensation Board will likely find it to be a compensable claim.

It should be noted, that whether a particular activity is compensable is a factual issue for the Board to resolve, “with the test being whether the activity is both reasonable and sufficiently work related under the circumstances.” Matter of Marotta v. Town & Country Elec., Inc., 857 N.Y.S.2d 340, 342(N.Y. App. Div. 3d Dep’t 2008).

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Emily Flasz is an associate attorney at Lois LLC where she defends employers and carrier in New York workers’ compensation claims. Emily can be reached directly at eflasz@lois-llc.com or 201-880-7213.