United States: Boundaries Defined For The Doctrine Of Continuous Employment

Last Updated: September 29 2017
Article by Sherrill N. Britt

In this day and age, employees are required to lodge away from home for days and weeks at a time to be near an employer's job site or to conduct business for the employer.  Unfortunately, there are situations when, while travelling and lodging away from home, employees sustain injuries in locations other than an employers' premise or place of business.  In Georgia, for an injury to be compensable under the Workers' Compensation Act, it is well established that the injury must both "arise out of" and occur "in the course of" employment.  O.C.G.A. § 34-9-1.  The term "arise out of" relates to a causal connection between the conditions of work and the injury, and the term "in the course of" refers to the time, place, and circumstances under which the accident takes place. Stokes v. Coweta County Bd. Of Educ., 313 Ga. App. 505 (2012).  Keeping in mind the two primary elements for a workers' compensation claim, how are injuries sustained when employees are travelling and lodging in locations away from home, to perform a job or conduct business for the employer, handled under the Georgia Workers' Compensation Act?

As a general rule, an injury sustained when an employee is going to or coming from work does not arise out of and in the course of employment.  As a result, those injuries are not compensable under the Workers' Compensation Act.  Nonetheless, in Georgia, there is an exception to the "going and coming" rule under the doctrine of continuous employment, or the travelling employee theory.  Under the doctrine of continuous employment, "activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities, arise out of and in the course of employment for an employee who is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer's job site."  Ray Bell Const. Co. v. King, 281 Ga. 853 (2007).

In Ray Bell, the Supreme Court of Georgia found that the employee's injuries were compensable under the doctrine of continuous employment.  The employee in Ray Bell was a Florida resident who was working on a job site in Georgia, and temporarily lodging in Georgia in an apartment furnished by the employer.  The employee was injured in Georgia, as a result of a motor vehicle accident while driving an employer-provided vehicle.  At the time of the accident, the employee had just finished a personal errand to deliver furniture and was headed back to either the job-site or the lodging provided by the employer.  Consequently, the Court determined that the employee was covered under the doctrine of continuous employment because the deviation from a personal errand had ended and the employee had resumed the employer's business at the time of the injury.  The language the Court used in Ray Bell, such as "for the health and comfort of the employee, including recreational activities," appears to cover any and all injuries sustained while an employee is requested to work and lodge away from home.  However, in several recent decisions, the Court of Appeals establishes some boundaries on the doctrine of continuous employment.

In a 2017 decision, the Court denied compensability for an ankle injury sustained by an employee who was living in lodging paid for by the employer.  Avrett Plumbing Co., et al. v. Castillo, A16A1808 (March 10, 2017).  In Castillo, the employee was an hourly employee who was hired by the employer to work on a plumbing job in Augusta.  The employee's work hours were from Monday through Friday, 8:00 a.m. to 5:00 p.m., and he was only paid for hours worked while performing his job duties.  Since the employee did not live in Augusta, the employer provided lodging in a hotel room during the work week.  However, the employer allowed the employee to use the hotel room on weekends because the room was paid for seven days a week due to the rental-agreement.  The employee often chose to stay in Augusta on weekends due to car trouble and the financial expense of travelling home, since expenses to travel home were not paid by the employer.  The employee was neither required to stay in Augusta on the weekends nor paid for any hours over the weekend.  On a Sunday afternoon, the employee, who stayed in Augusta over the weekend in the hotel room furnished by the employer, went out to buy groceries, tripped and broke his ankle.  The employee filed a workers' compensation claim for his ankle injury, under the doctrine of continuous employment, but the claim was controverted by the employer.  After a hearing, the ALJ awarded benefits, finding a compensable injury.  The employer appealed and the Appellate Division reversed, finding that the employee was not a "continuous employee" at the time of the injury.  Ultimately, the issue landed before the Court of Appeals, who held that the evidence supported the Appellate Division's decision that the employee's injury was not covered under the continuous employee theory.

In Castillo, even though there was no dispute that the employee was required to lodge away from home to perform his job, and that a hotel room was furnished by the employer, the Court found that the employee was not mandated by the employer to be in Augusta on Sundays and, thus, the employee was not a continuous employee on the weekend.  The Court focused on the fact that the employer allowed the employee to use the hotel room on the weekend as a personal convenience, but the employee was not required by his employer to be in Augusta on a Sunday.  As a result, the employee's injury did not arise out of and in the course of employment under the doctrine of continuous employment.

In a 2012 case, Medical Center, Inc. v. Hernandez, workers' compensation benefits were denied for two employees (serious injuries to one employee, and the death of the other employee) as a result of a motor vehicle accident about five minutes from the employer's job site.  319 Ga. App. 335 (2012).  In Hernandez, the two employees, Hernandez and Alvarez-Hilario, lived in Savannah and were hired to work on a construction project in Columbus, Georgia.  The two employees were only required to be in Columbus Monday through Friday; they were neither required nor paid to stay in Columbus on the weekends.  As such, the employer provided lodging at a motel in Columbus for the employees, Monday through Friday, the days they were required to be in Columbus to work at the employer's job site.  On Saturday mornings, the employees would return to Savannah for the weekend and then travel back to Columbus on Monday mornings to resume their job duties for the employer.  The employees were only paid for actual hours worked and were not paid for travel time.  On a Monday morning, the employees were passengers in a personal vehicle of a co-worker, travelling back to Columbus to begin the work week at the job site for the employer.  When the employees were about five minutes away from the job site, they were involved in a motor vehicle accident.  As a result, Alvarez-Hilario was killed and Hernandez was severely injured.  

Thereafter, claims for workers' compensation benefits were filed on behalf of both employees, but both claims were denied by the ALJ, a decision that was upheld by the Appellate Division and Superior Court, on the grounds that the doctrine of continuous employment did not apply to the injuries sustained by the employees in these claims.  The Court of Appeals agreed, and concluded that the employees were off-duty and no longer continuously employed on the weekends. In reaching this conclusion, the Court focused on the fact that the employees were only required to stay in Columbus during the week, and they were only paid for the actual time performing their construction jobs for the employer. The employees were not required to stay in Columbus for the weekend and were not paid for any travel time on the weekend.  As a result, the employees were off-duty, and their coverage under the doctrine of continuous employment would only have resumed when the employees were "back in the general proximity of the place where they were employed, and at a time they were employed to be in that general proximity."  Id.  Since the employees had not reached the job site to begin their work on the construction job for the employer, the injuries were not covered under the doctrine of continuous employment.

What can be learned from Castillo and Hernandez in handling claims for employees who are injured at a time that they are "required by his [or her] employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer's job site?"  In reviewing these recent cases, the Court confirmed that the doctrine of continuous employment has limits.  Like most workers' compensation claims, in analyzing compensability under the doctrine of continuous employment, go back to the basics: who, what, when, where, and why.  In reviewing claims in similar situations with a travelling employee, pay close attention to the facts, particularly since one single factor can determine compensability, or lack thereof, and, ultimately, whether the doctrine of continuous employment will afford coverage under the Workers' Compensation Act.  For example, in Castillo, if the employee had been injured on a Monday night (as opposed to a Sunday night), at a time when he was required to be in Augusta for work, after he finished grocery shopping to return to the employer-provided lodging, would the injury have been compensable?  In Hernandez, if the motor vehicle accident occurred on a Tuesday morning five minutes away from the job site when the employees were travelling from the lodging provided by the employer, would the injuries have been found to be compensable?  The bottom line is that before automatically accepting or denying a claim for a travelling employee who is injured while lodging away from home to be near an employer's job site, gather all of the facts because there are limits and defenses to the doctrine of continuous employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.