NEBRASKA’S GOING TO AND COMING FROM WORK RULE

June 14, 2012 by Nicholas F. Sullivan

Under Nebraska’s workers’ compensation laws, an employer is required to compensate an employee for personal injuries that are caused by an accident arising out of and in the course of the his or her employment.  Neb. Rev. Stat. § 48-101 (Reissue 2008).  “An injury is said to arise in the course of employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.”  Zoucha v. Touch of Class Lounge, 269 Neb. 89, 93, 690 N.W.2d 610, 615 (2005).  One rule that has developed in determining whether an accident arises out of and is in the course of one’s employment is the “going to and coming from work” rule.  Id.

The going to and coming from work rule, which the Nebraska Supreme Court modified in 1998, states that “injuries sustained by an employee while going to and coming from work do not arise out of and in the course of employment unless it is determined that a distinct casual connection exists between an employer-created condition and the cause of the injury.”  Zoucha at 93-94, 690 N.W.2d at 615.  This rule permits compensation when an employee sustains an injury off his or her employer’s premises only “when there is a distinct casual connection between an employer-created condition and the occurrence of the injury.” Torres v. Aulick Leasing, Inc., 261 Neb. 1016, 1022, 628 N.W.2d 212, 218 (2001).

The rationale and theory behind the rule is that injuries sustained while going to and coming from work are not work related and are similar to injuries one would sustain off duty while away from an employer’s premises.  82 Am. Jur. 2d Workers’ Compensation § 271 (2003).  Generally, the employee-employer relationship is suspended from the time the employee leaves work until the employee returns to work the next day.  Id.  Therefore, an employee’s injuries sustained while going to and coming from work usually do not arise out of and in the course of employment and do not qualify for workers’ compensation benefits.  Id. § 269.  However, Nebraska courts recognize a number of exceptions to the going to and coming from work rule.  Id.

A.  Employer Premises & parking Lot Exceptions

One exception to the going to and coming from work rule is the employer premise exception, which provides that “an employee injured on the premises of the employer where he or she works while coming to work or leaving work is within the course of his or her employment.”  Zoucha at 94, 690 N.W.2d at 615.  Under this exception, injuries sustained by employees while entering and leaving their employer’s premises in the usual and customary way are compensable under the workers’ compensation laws.  Id. at 96, 690 N.W.2d at 617.

A corollary to the employer premises exception is the parking lot exception, which allows employees to recover benefits for injuries sustained in parking lots owned or maintained by their employer because the parking lots are considered part of their employer’s premises.  Id. at 94, 690 N.W.2d at 615.  Nebraska courts have extended the parking lot exception to shopping center parking lots that are “provided for the convenience, and used by, employees of the businesses located in the center.”  Id. at 95, 690 N.W.2d at 616.  This exception also applies to employers that are tenants in a shopping center that do not own or maintain the parking lot.  Id.

 

B.  Commercial Traveler Exception

               

Another exception to the going to and coming from work rule is the commercial traveler exception.  Under the commercial traveler exception, “[w]here an employee, in the performance of his or her duties, is required to travel and an accident occurs while he or she is so engaged, the accident arises out of and in the course of his or her employment.” Torres at 1024, 628 N.W.2d at 219.  This commercial traveler exception applies to traveling employees during their entire period of business travel, which usually includes the time the employee leaves home until the time they return.  Id. at 1024, 628 N.W.2d at 219-20.  However, in order for travel to fall under the commercial traveler exception, the employer’s mission must be the major factor of the travel, and not just incidental thereto.  Id. at 1024, 628 N.W.2d at 220.

C.  Special Errand Exception

Nebraska courts also recognize the special errand exception, which states that,

[w]hen an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.

Torres at 1026, 628 N.W.2d at 220.  This exception only applies when the employee makes the journey through the instruction, direction, requirement, or suggestion of the employer.  Id. at 1026, 628 N.W.2d at 221.

 

D.  Employer-Supplied Transportation Exception

Another notable exception is the employer-supplied transportation exception, which states that, “where transportation to the place of work is furnished by the employer and the injury occurs while the workman is being transported in a vehicle under the control of the employer, the injury may arise out of and in the course of employment.”  Butt v. City Wide Rock Excavating Co., 204 Neb. 126, 127, 281 N.W.2d 406, 407 (1979).  For this exception to apply, the transportation must be supplied by the employer, under the employer’s control, and not furnished solely for the employee’s convenience or benefit.  Butt at 127-28, 281 N.W.2d at 407.

E.   Authority Over Employee Exception

A final exception to the going to and coming from work rule is when an employer retains authority over its employee.  Misek v. CNG Financial, 265 Neb. 837, 843-44, 660 N.W.2d 495, 501 (2003).  If it is found that the employer “in all circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the interval can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course of employment.”  Misek at 843-44, 660 N.W.2d at 501.  This exception usually applies when the employee is already clocked in at work, but is in the process of taking a rest or coffee break off of the employer’s premises.  See Misek at 843, 660 N.W.2d at 501 (finding the going and coming rule inapplicable where employee, already at work, was injured during an off premises break, and noting that the employee usually stayed in the area during her breaks, would end breaks early if business increased, was paid during her breaks, and had previously traveled off her employer’s premises to buy drinks at the direction of a supervisor).

If you have any questions or would like more information on the going to and coming from work rule, please contact the labor and employment attorneys at Erickson | Sederstrom.