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.

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