By Judge Diane Lundeen

Louisiana Workforce Commission

Office of Workers’ Compensation Administration
Covington, LA

 

 

Diane Lundeen has been a workers’ compensation judge for 18 years. During her tenure on the bench, she has presided in courts across the state and served as the Chief Judge from 2016 through 2018.  Judge Lundeen was an adjunct professor at Tulane Law School, where she taught trial advocacy. For the past 14 years, Judge Lundeen has been the chair of the New Orleans Bar Association’s Workers’ Compensation Section.  Judge Lundeen received her B.A. from Tulane University and her J.D. from Loyola School of Law New Orleans.  Judge Lundeen is also an active animal rescue advocate, working with local rescues and assisting with developing animal health and safety laws.

 

The implications of remote work are vast and complex, particularly if an employee is working in a different state than his or her employer.  There are both legal and regulatory considerations. These ramifications range from tax, wage and hour, licensing, benefits programs, leave requirements, privacy laws, business permitting, and workers’ compensation laws.  This article focuses on Louisiana’s workers’ compensation “going and coming rule” for remote employees working in the same state as their employer.

The new flexible workplace

Since the pandemic, working remotely has become a benefit offered by many employers to attract and to retain employees.  These alternative work environments removed employees on a part-time or full-time basis from the office.  In 2023, 35% of United States workers worked remotely from home.[1]  In August through September 2022, 27.5% of private-sector establishments had employees teleworking some or all of the time.[2]   In February 2023, 41% of those with jobs that could be performed remotely were working a hybrid schedule, part time in the office and part time elsewhere.[3]

Teleworking and remote working are often used interchangeably.  However, two distinct categories of offsite employees have emerged: employees who only work offsite and those that work a hybrid location schedule.  The first category, remote workers, are those employees who are not expected to report to an employer’s worksite on a regular and recurring basis.[4] The remote worker works from home or some other place that is not his or her employer’s usual place of business.[5] The remote location is their official duty station.

The hybrid model, or teleworking, involves employees working at home, while communicating with their offices by phone, email, or the internet.  Teleworking is a flexible work arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.  This group still goes to the office as directed by the employer.  Teleworkers’ official duty station is the physical office designated by the employer; however, for many reasons, an employer may only require the employee to come to the office occasionally.  The trend for hybrid work arrangements continues to grow.  One result of the new work place models is a changing interpretation of where someone’s workplace is located and when or if an employee is in the course and scope of his or her employment during traveling activities previously considered to be excluded from workers compensation.

This legal gray area is significant because injuries resulting from vehicular accidents on roadways is the leading cause of work-related deaths.  In 2022, 1,369 workers died in wrecks on public roads and highways.[6]  Vehicular accidents away from public roadways, such as in fields, factories, or parking lots accounted for an additional 325 deaths.[7]  In 2021-2022, roadway incidents resulted in 68,560 cases of non-fatal injuries.[8]   In 2022, non-roadway incidents resulted in an additional 16,970 non-fatal injuries.[9]  These numbers exclude those employees injured or killed in a pedestrian/vehicle accident.

The Going and Coming Rule

The going and coming rule exists in most states’ workers’ compensation laws.    With a few exceptions, this rule disallows workers compensation benefits to employees who are injured while traveling to or from work.  The principle underlying the rule is that when the workday ends, so does the employee-employer relationship. That relationship doesn’t resume, in most cases, until the worker goes back to work.  In most states, compensability for travel-related accidents hinges on whether the worker is injured in the course and scope of his or her employment and whether the accident arises out of the employment.

The exceptions to the rule vary by state.  However, the most common exceptions as illustrated by Louisiana law are:

1. If the accident occurs on the employer’s premises;
2. If the employee was deemed to be on a specific mission or special mission for the employer;
3. If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;
4. If the employee was doing work for his employer under circumstances where the employer’s consent could be fairly implied;
5. If the employee was injured while traveling to and from one work site to another;
6. If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee which is different than the risk to which the general traveling public is exposed (“the threshold doctrine”);[10] or
7. If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee.[11]

The requirement that an employee’s injury occur “in the course of” employment focuses on the time and place relationship between the injury and the employment.[12]  An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employers’ premises or at other places where employment activities take the employee.[13] Because an employee usually does not begin work until he reaches his employer’s premises, his commute is generally considered outside the course of his employment unless he has a duty to perform en route.”[14]  The requirement that an employee’s injury “arise out of” the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment.[15]

In determining whether the employee’s conduct is employment-rooted, the court assesses several factors, including the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the particular act, the time place and purpose of the act in relation to service of the employer, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act.[16] An employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination.[17]

In 1994, Louisiana’s Supreme Court, held that the “going and coming rule” is not inflexible when the employee does not work on the employer’s premises or have a fixed place of work.[18] In Orgeron, the Supreme Court, based upon the time constraints imposed on an employee to report to a particular (non-employer premises) location to work and the emergency nature of the assignment, held that an employer’s automobile accident while he was on his way to work occurred within the course and scope of his employment.

In 2003, the Court recognized that the going and coming rule applies easily when the employee has a fixed place of work.[19]  Almost prophetically, the Court acknowledged the challenges to applying this rule to employees working in non-traditional places.  “Not all employees, however, work on the employer’s premises or have a fixed place of work.  The dispatching of employees to different work locations gives rise to many “shades of gray” in the otherwise “black and white” application of the rule”.[20]  When an employee is required to check in at a certain place and is then dispatched to the work site for that day, he is generally in the course of employment in the travel between the check in place and the work site, but not between home and the check in place.[21]  However, when an employee is instructed to report to different work sites which change periodically, without first reporting to a check in place, there are more variations in the determination of course and scope of employment.[22]

Closely related to the going and coming rule is the “special mission” exception for travel.  “When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course and scope of employment by the fact that the trouble and time of making the journey, or special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.”[23]

In 2003, Louisiana’s Supreme Court analyzed the “special mission” exception.  An employee who worked at a plant in Geismar was injured when driving home from an employer-mandated safety meeting held at a different location than his worksite.  The court held that, “once an employee engages in the performance of a special mission, an injury suffered en route from the employee’s home to the location of the mission, or from the location of the mission to the employee’s home, is considered to be within the course of employment”.[24]  The court reasoned because the employer held the mandatory meeting off-premises, “travel was an indispensable part of attending the meeting”.  The accident arose out of the employee’s employment because the employee was engaged in his employer’s business, a mandatory meeting that “directly benefitted McLin’s employer”.[25]  The special mission exception confers “portal-to-portal” workers compensation coverage.[26]  Louisiana’s Fifth Circuit recently considered the special mission exception as part of the inquiry for remote and teleworking employees.

The court considered whether an employee who worked from home ninety-five percent of the time but who was required to come to monthly sales meetings in his employer’s office was in the course and scope of his employment when he had a car accident while traveling to the meeting.[27]  Louisiana’s Supreme Court reversed the trial court’s finding that the employee was not in the course and scope of his employment.  In determining whether the employee was in the course and scope, one looks to whether the employee was a “work-from-home employee, was commuting to the office, traveling between two work locations, or on a special errand/mission”.[28]  Even if the remote employee were commuting to his employer’s office, the commuting exceptions exist if the trip is employment-connected, the employer had reason to expect it would be performed, or the employee is to be compensated.[29]  In this case, the employee only required his phone and his laptop to work.[30]  The court reasoned that the principle that an employee does not begin to work until he reaches his employer’s premises does not apply to an employee who works remotely and who only requires his laptop and phone to work.[31]  This reasoning highlights that remote and teleworking employees’ worksites are considered to be their homes or other locations from which they choose to work.

The issue facing modern employers is whether an employer’s office is an employee’s office.  “This determination should not be made lightly as more employers are allowing employees to work from home following the pandemic without clear policies on where the employee’s “office” is located.”[32]  Is the employee’s home his primary worksite where he checks in for work each day?  Is the employer’s office a different worksite? How does one establish that the employer’s office is considered the employee’s office?  What are the company policies relating to where the employer considers the employee to work?  Did the employer take an interest in the employee’s presence in the office sufficient to make the commute in the course and scope?  If the meeting was compulsory, then was it to serve the employer?  Traditionally, commuting to work on a regular schedule is not incidental.  Regularly scheduled meetings in the office are not special missions, depending on the case.[33]  Commuting only becomes incidental when it serves the employer.  There are a series of cases with different outcomes, and this inquiry is a fact sensitive one for which clearly written policies and well-defined work locations are extremely important.  As more people work remotely, the legal interpretation of “course and scope” and “arising out of” in both tort and workers’ compensation cases will continue to evolve rapidly, making it a fertile ground for practitioners.

[1] Pew Research Center, “About a third of U.S. workers who can work from home now do so all the time”, Kim Parker, March 30, 2023.
[2] Bureau of Labor Statistics.
[3] Pew Research Center, Survey of U.S. workers conducted February 6 – 12, 2023.
[4] A teleworker is one who works at home, while communicating with his or her office by phone or email or using the internet.  Cambridge Business English Dictionary, Cambridge University Press. Dictionary.cambridge.org/us/dictionary/English/.  Teleworking is a flexible work arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.  5 U.S. Code §6501(3).  Many federal employers note that the teleworker’s official duty station is the physical office designated by the employer.  See Department of the Interior.
[5] Cambridge Business English Dictionary, Cambridge University Press. Dictionary.cambridge.org/us/dictionary/English/.
[6] Bureau of Labor Statistics.
[7] Bureau of Labor Statistics.
[8] Id.
[9] Id.
[10] Posey v. NOMAC Drilling Corp., 16 So. 3d 1211, 1217 (La. App. 2^nd Cir. 2009); McLin v. Indus. Specialty Contractors, Inc., 851 So. 2d 1135, 1141 (La. 2003).
[11] McLin v. Indus. Specialty Contractors, Inc., 851 So. 2d 1135, 1141 (La. 2003).
[12] McLin, supra; Weber v. State, 635 So.2d 188 (La. 1994).
[13] McLin v. Indus. Specialty Contractors, Inc.,  851 So. 2d 1135, 1141 (La. 2003); Mundy v. Dept. of Health and Human Resources, 593 So. 2d 346 (La. 1992).
[14] Orgeron on behalf of Orgeron v. McDonald, 639 So. 2d 224, 227 (La. 1994).
[15] McLin, supra; Williams v. Regional Transit Authority, 546 So.2d 150 (La.1989); Posey v. NOMAC Drilling Corp., 16 So.3d 1211, 1214 (La. App. 2 Cir. 2009).
[16] Orgeron on behalf of Orgeron v. McDonald, 639 So. 2d 224, 227 (La. 1994).
[17] Orgeron on behalf of Orgeron v. McDonald, 639 So.2d 224 (La. 1994).
[18] Orgeron, on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227–28 (La. 1994).
[19] Louisiana’s workers’ compensation courts and courts of general jurisdiction use the same inquiries in tort and workers’ compensation for determining whether an injured employee was in the course and scope of his employment at the time of an accident.
[20] Orgeron on behalf of Orgeron v. McDonald, 639 So. 2d 224, 227 (La. 1994).
[21] See generally Arthur Larson, Law of Workman’s Compensation § 16 (1993).
[22] Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227(La. 1994).
[23] McLin, 851 So. 2d at 1143 (La. 2003), citing Arthur Larson, Larson’s Workmen’s compensation Law §14.05[1] = 14.05[2].
[24] Mc.Lin v. Industrial Specialty Contractors, Inc., 851 So. 2d 1135, 1138 (La. 2003).
[25] McLin, 831 So. 2d at 1142-43 (La. 2003).
[26] Note 23.
[27] Quatroy v. Thornton, 349 So.3d 1094, 1099–101 (La. App. 5th Cir. 2022), writ granted, decision rev’d, 353 So.3d 718  (La. 1/25/23).  This case was a tort case based on vicarious liability.  The going and coming rule is applicable to this type of Louisiana case, and the same analysis used in workers’ compensation cases is applied.
[28] Quatroy, 349 So. 3d 1094, 1101-02 (La. 5^th Cir. 2022).
[29] Quatroy, 349 So. 3d at 1102.
[30] Id.
[31] Quatroy, 349 So. 3d 1094, 1102 (La. App. 5^th Cir. 2022).
[32] Quatroy, 349 So. 3d at 1102.
[33] See Quatroy v. Thornton, 349 So. 3d at 1099 (regularly scheduled in office safety meeting is not “special” but rather an ordinary part of the teleworking employee’s job, precluding workers’ compensation coverage”); Johnson v. Transit Management of Southeast Louisiana, et al, 239 So. 3d 973 (La. App. 4^th Cir. 2018) (being called in to work early and making the same trip to work the employee routinely made is not an exception and is not compensable); Barnes v. Children’s Hosp., 675 A. 2d 558, 565 (Md. Ct. Spec. App. 1996) (A job task which required an employee to “drop everything and travel to the workplace” could be considered part of a service rendered for the employer in the course and scope and therefore compensable); Matlock v. Hankel, 707 So. 2d 1016 (La. App. 4^th Cir. 1998) (Volunteer firefighter called to service is not an ordinary commute to work.  A “firefighter is “at work” from the time he begins to respond to the fire,” and if he has an accident while on his way, he is in the course and scope of employment.); Strickland v. Galloway, 560 S.E. 2d 448, 450 (Ct. App. 2002) (A “volunteer firefighter is not ‘going to work’ when responding to the call but is ‘at work’ when responding to the emergency call. Because these volunteers must respond immediately and expeditiously, they are performing the fire department’s business when they embark on their response to a fire.”)  Thibodeaux v. Geico Casualty Co., et al, 249 So. 3d 114, 119-20 (La. App. 3^rd Cir. 2018) (Employee injured while traveling to a meeting at a location other than her usual place of work was in the course and scope of her employment.)