“Ask Sheila” – Workers’ Compensation

Are parking garage injuries covered under workers’ compensation?

Dear Readers:

For this issue, I’m going to make it a bit personal and answer my own question. I recently got the wonderful opportunity to experience an injury from the “employee side”, when I broke my ankle in our building’s parking garage after work on the way to my car. It was 6:30 in the evening. Because I had left work for the day, and because my firm does not own or have exclusive use of the parking garage, it didn’t occur to me that the injury might be covered by workers ‘compensation. I was wrong.

It turns out,  although  commuting is not in the course  and scope of employment, once you enter a parking lot that your employer arranges for you to park in, the commute is over. And your commute home doesn’t start until you leave that lot, even if the employer only leases the lot and has no real control over its upkeep. An employer still is found to be “exercising control” over the lot if employees are directed to park there. If the parking garage is several blocks away, then injuries sustained while walking on city streets to get there are also covered workplace injuries.

There are some limitations. Because I am an exempt employee, as long as I was leaving work, it doesn’t matter how late it was. But what if I first left the building on foot, went to dinner and a show downtown, and then went to my car in the garage hours later? That broken ankle now wouldn’t be covered under workers’ comp, because I was using the lot only for my own benefit at that time and not the firm’s. In other words, I had left the “course and scope” of my employment with the side trip. What if the dinner was to entertain a client? Now the injury would be covered. Are you seeing the pattern here?

If your employees park on the street or arrange for their own lots, then their parking lot injuries probably aren’t covered before and after work. But if you send them to their car on a work-related errand mid-day, or you ask them to stop at the bank on the way home, then all that travel time—from the office, to the car, and to the bank—would likely be work time for workers’ compensation purposes, even if the employee has clocked out for the day. If the bank is not on the employee’s normal route home, the employee would be covered after leaving the bank, until rejoining her normal route home.

Most of the time spent traveling for an employer is covered as work time, even after the work day is over, such as going to dinner near the hotel. But if the employee travels way off the route

for personal reasons and gets hurt, such as going to a famous restaurant 30 miles away from the hotel, the injury is usually not covered. Once he gets back on the normal route, he’s back under workers’ comp protection. There are definitely some grey areas here.

Being injured while driving a company vehicle doesn’t necessarily make the injury covered under workers’ comp. Obviously, driving on company business is covered, but what if the employee takes the vehicle home each night? Are injuries incurred during the commute covered? It depends on whether taking the vehicle home is for the employer’s or employee’s benefit. If the vehicle is provided as a perk to the employee, then the commute is not covered. If the employer needs the employee to have the vehicle at home for emergency response, then at least some courts would find the commute to be in the course and scope of employment, and any injury covered, because taking the vehicle home was for the employer’s benefit.

One last scenario. An employee stops for breakfast tacos on the way to a work meeting and buys tacos for the whole group. She hits her head on the taco truck and needs stitches. Covered?

Probably not. But if it was her “turn” to bring the food, and she was expected to do so by her supervisor, then likely the injury would be covered.

As you can see, there are often a few fact issues for workers’ comp providers and courts to hash out and decide if an off-site injury occurred in the “course and scope of employment.” It is

a good idea, when reviewing workplace safety, to immediately inform the owners of building common areas and parking lots of any safety concerns, as the employer’s workers’ comp carrier will often be on the hook for employee injuries in those areas.

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“Ask Sheila” is prepared by Sheila Gladstone, the Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.