Legal and Regulatory

Best Practices for Claims Involving Traveling Employees

Construction industry leaders face unique challenges when it comes to managing “traveling employees” whose positions do not involve typical hours or locations.
By Alex Ficker
March 8, 2020
Legal and Regulatory

A typical 9-to-5 employee usually works fixed hours at a set location where an employer can control the work environment to prevent work accidents. However, construction industry leaders face unique challenges when it comes to managing “traveling employees” whose positions do not involve typical hours or locations.

In a worst-case scenario, if traveling employees are injured, the employer and insurer must then determine if the injury is compensable, or in other words, warrants the payment of workers’ compensation benefits.

In Georgia, for example, compensability under the Workers’ Compensation Act requires an injury “arise out of and in the course of employment.” The “arise out of” component requires a causal connection between the work accident and the employment. Comparatively, the “in the course of” component requires the injury to occur at a time and place where the employee reasonably may be performing work.

Although compensability requires satisfaction of both components, when discussing traveling employees, the “in the course of” component is often the focus of the analysis.

Continuous Employment

Where projects require travel, particularly overnight, the Workers’ Compensation Act and applicable case law give these employees a greater degree of protection because they are exposed to the “perils of the highways and the hazards of hotels.” This expanded scope of employment is referred to as “continuous employment.”

As a result, the analysis and defenses an employer may utilize for traditional 9-to-5 employees may not apply in continuous employment cases, which often leads to misunderstandings.

Overnight Travel

The expanded scope of protection is most readily apparent in cases involving overnight travel. For example, a traveling employee was killed in a hotel fire during an overnight stay for work in Atlanta. Even though he was not actually performing “work” at the time of his death, the court found his death compensable because his overnight stay was a necessary and normal incident of his employment while traveling.

Another more striking example occurred in which the Court of Appeals of Georgia found a worker’s death compensable when he fell down a set of motel stairs after drinking alcohol and playing poker. Despite these activities usually falling outside the responsibilities normally associated with 9-to-5 employment, based on the expanded scope of “continuous employment,” the accident was deemed to have occurred during the “course of employment.”

Accordingly, when the employee “is ministering to his personal comforts or necessities…to procure drink, refreshments, or foods” while traveling, such activities are deemed “necessary to the continuance of his duties as the breath of life,” and the employee is considered to be within the course of employment.

There are, however, limits to the “continuous employment” doctrine. For example, the Court of Appeals of Georgia found an employee, whose employer gratuitously offered housing over the weekend, did not establish “continuous employment” when his injury occurred while performing a purely personal errand during a non-working weekend. The court found no “continuous employment” because the claimant was not on call or otherwise paid for his time when his accident occurred, nor was he required to stay over the weekend. Rather, he simply chose to take advantage of these accommodations for his own convenience.

Highway Travel

Additionally, although employees traveling the highways are afforded more protection, such activity alone is not enough to establish “continuous employment.”Georgia’s courts look at several factors, including whether the employee was driving a company vehicle, if an employee was en route to the place of employment or performing an act beneficial to the employer and/or whether the mission was purely personal.

For example, the Court of Appeals of Georgia held injuries from a motor vehicle accident were not compensable when the accident occurred five minutes from the employer’s jobsite on a Monday morning. Although the employer provided overnight accommodations Monday through Friday, because the employees had not yet resumed their duties for the week at the time of the accident, the continuous employment doctrine was not applicable. In another case, an injury did not occur in the course of employment when an employee was driving in the opposite direction of the employer’s location, with a non-employee in the truck and with evidence of intoxication.

Implications and Recommendations

These examples illustrate the importance of a thorough investigation into the circumstances of any accident. When assessing the compensability of a traveling employee’s accident, confirming the time, place and purpose of the travel is critical to assess whether the employee’s actions were reasonable and consistent with employment.

While the compensability of a work injury for a traveling employee is an inherently factual determination, there are certainly ways to reduce exposure in these scenarios. Consider specific and explicit limits on employees’ activities while traveling or the receipt of wages and overnight expenses to working hours and weekdays.

If you are sending employees to an out-of-state jobsite, prepare a list of reliable doctors near the jobsite who can provide treatment—do not just rely on the local ER—and notify your foreman/supervisors that light duty work should be provided to keep employees working rather than returning home to collect a disability check. Implementing these strategies ahead of time will help you keep control over claims and reduce exposure.

Keeping these lessons and practices in mind when formulating and implementing policies related to traveling employees can maximize chances of effectively preventing, investigating and managing their workers’ compensation claims.

by Alex Ficker
R. Alex Ficker is a partner at Swift, Currie, McGhee & Hiers, LLP. For more information, email [email protected].

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