Written by Christopher R. Wilson, Esq.
Edited by Rachel A. Riordan, Esq.
May an employer be held responsible for injuries an employee suffers even when he or she is “off the clock” or has left or not yet arrived at the job site? In Virginia, the answer is generally no, but there are exceptions to the general rule of which every employer should be aware.
Under most circumstances, injuries suffered while an employee is going to or coming from work are not considered to have occurred “in the course of” the employment, and therefore are not compensable under the Virginia Workers’ Compensation Act. There are, however, three exceptions to this so-called “coming and going” rule that can make an injury compensable: (1) where the employee’s means of transportation is provided by the employer or travel time is paid for or included in the employee’s wages; (2) where the accident occurs in a location that is the only means by which all employees enter and exit the employer’s premises, and (3) when the employer requires the employee to undertake a “special errand” away from the employer’s place of employment. Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987). Lastly, if the accident occurs in a parking lot or walkway that is found to be an “extension of the employer’s premises,” the going and coming rule will not bar the claim. Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987).
The fact that an accident occurs in a parking lot or walkway used by employees is not sufficient by itself to make the accident compensable, but if the lot or walkway is reserved exclusively for employees, or is owned and maintained by the employer, the area is likely to be considered part of the employer’s “extended premises.”
The most recent case from the Virginia Court of Appeals addressing both the “extended premises” doctrine and the “coming and going” rule is Washington v. Honeywell Int’l, Inc., No. 0467-17-2 (Va. Ct. App. Oct. 24, 2017). In Washington, the claimant left the employer’s building after work and was struck by a motor vehicle as she crossed a two-way public road while walking to a parking lot. The parking lot in question was owned by Honeywell and provided exclusively for employees, but Honeywell also owned and maintained several other parking lots the claimant could have used instead.
The claimant contended that her accident was compensable either because the public road on which she was injured was part of Honeywell’s “extended premises,” or alternatively, that the second exception to the “coming and going” rule applied to her case, because crossing the public road was the only means of traveling to and from the lot in which her car was parked.
The Court of Appeals found in the employer’s favor and held that the public road on which the claimant was injured was not part of the employer’s extended premises because Honeywell had no “right of passage” across the street, did not “own, maintain, or control” the site of the injury, and neither directed nor required the claimant to cross the public road to reach the parking lot. Honeywell offered other parking lots to its employees, and although these lots were located farther from the employer’s building, the claimant would not have needed to cross the street if she had parked in one of these areas.
For similar reasons, the court held that the second exception to the “coming and going” rule did not apply because the public roadway on which the claimant’s accident happened was not the “sole and exclusive” way for the claimant to reach her place of work. She was permitted to use multiple different parking lots, and parking in any of the other available lots would not have required the claimant to cross a public roadway.
The following takeaways from Washington v. Honeywell are worth remembering:
- Accidents that occur on a public roadway—including roads located very near the employer’s property or even between two locations owned by the employer—are generally not compensable. The key, however, is the extent to which the employer owns, maintains, or controls the specific site of the injury. An employer may create control over an area by, for example, directing or requiring employees to park in a specific lot, designating a portion of a lot as “employee parking,” or identifying a particular entrance or pathway to a building for employee use
- The Court of Appeals focused on the fact that Honeywell offered several different parking lots for use by its employees, only one of which was reached by walking across a public roadway. If the parking lot used by the claimant had been the only parking lot available, the court might have found that the “sole and exclusive means of ingress and egress” exception to the coming and going rule applied, despite the fact that the accident occurred on a public road over which the employer had no control or ownership.