NEW YORK’S “COMING AND GOING RULE”
AND THE SPECIAL ERRAND EXCEPTION
New York Workers’ Compensation Law provides a general rule-of-thumb that employees are not deemed to be in the course of their employment when travelling to and from work. This is commonly referred to as the “coming and going rule.” Essentially, an employer is not liable for Workers’ Compensation benefits for an employee’s injuries sustained while travelling to and from work.
Unfortunately, the rule does not begin and end there. New York provides exceptions to the coming and going rule. Injuries sustained by employees while engaged in work-related travel have been found compensable by the Board, such as compensated business trips or travel in an employee’s own car in which the employee receives a mileage reimbursement. Employees who do not work in a fixed location, such as door-to-door salespeople, can also receive Workers’ Compensation benefits for injuries sustained during work-related travel. Another common exception to the rule is injuries sustained by employees while entering or leaving the employer’s premises or worksite.
An interesting exception to the rule is the special errand exception. This exception applies to instances where an employee is injured while running an errand at the direction of the employer and that errand serves to benefit the employer. Such cases have been found compensable by the Board. It is important to note that the errand does not have to be work-related in order for an employee’s injury to be found compensable. For example, if an employer asks an employee during work hours to pick up the boss’s coffee at a shop two blocks from the office, and the employee is struck by a car while crossing the street, there is a strong likelihood that the employee’s injury will be deemed compensable by the Board. Also, if claimant
To make this exception even more complicated, the special errand exception would not be complete without an exception to the exception. The Appellate Division has limited the special errand exception in cases where the employee engages in activity that is unreasonable and insufficiently work-related under the circumstances. In such cases, the Board is left to determine what is “unreasonable and insufficiently work-related.”
The Appellate Division provides some guidance on this limitation to the special errand exception in Oehley v. Syracuse (151 A.D.2d 825 [1989]). In Oehley, claimant was on a “special errand” while working as a program director for an outdoor auction sponsored by his employer. After the auction ended and before returning home, claimant traveled to an Indian Reservation to drink and engage in sexual activity which, tragically, resulted in claimant’s death. Claimant’s estate filed for Workers’ Compensation death benefits and the Board denied the claim citing that the coming and going rule barred the estate from receiving benefits. The Board Panel Commissioners reversed the decision and sent the case back to the Law Judge, who established claimant’s case for benefits opining that claimant’s death was work-related because he was returning home from the special errand of working at an employer-sponsored auction. The employer appealed.
The Appellate Division held that the special errand exception did not apply in this case because instead of returning home from the work-related errand, claimant travelled to an Indian Reservation and engaged in activity at the time of his death that was clearly unrelated to his job as a program director. As such, claimant’s estate was barred from receiving death benefits.
Oehley provides a clear example of what is considered by the Board as unreasonable and insufficiently work-related activity and shows the importance of factual investigation for carriers and self-insured employers when faced with a work injury that did not occur at a traditional work site. Also, Oehley points out the value for an employer to have a clear plan for its employees in regards to what is considered work-related activities and what is outside the scope of employment.