WHERE DOES THE JOBSITE END? WASHINGTON’S “COMING AND GOING” RULE
By Kimberly Peterson, Attorney at Law
Workers are sometimes injured immediately before arriving at work or shortly after leaving. Whether those injuries are compensable under Washington workers’ compensation law can depend on a deceptively complicated question: Where does the jobsite begin and end?
Under Washington’s so-called “coming and going” rule, injuries sustained during an ordinary commute to or from work are generally not compensable. However, RCW 51.08.013 provides that the course of employment may include time spent going to and from work on the jobsite, when that travel is immediate to the worker’s work and occurs in areas controlled by the employer. As a result, compensability can turn on where the injury occurred, how the area was used or controlled, and how the worker accessed the actual worksite.
Employer ownership of the location is not necessarily determinative. Washington law defines a “jobsite” by reference to premises occupied, used, or contracted for by the employer for its business or work process. Accordingly, the analysis generally focuses more on the employer’s use and control of an area than simply who owns the property. Conversely, an employer-owned area is not necessarily part of the jobsite for purposes of a worker coming to or leaving work merely because the employer owns it.
The statute also specifically excludes parking areas from its definition of the jobsite when a worker is merely coming to or going from work. However, the parking-area exclusion is not absolute. Washington courts have recognized circumstances where a worker injured in a parking area may nevertheless be acting in the course of employment, including where the worker was engaged in an activity at the employer’s direction or in furtherance of the employer’s business. Thus, the fact that an injury occurred in a parking area does not, by itself, resolve compensability.
Washington courts have also recognized a “hazardous route” exception that can extend the jobsite beyond areas owned or controlled by the employer. In Hamilton v. Department of Labor & Industries, the Washington Supreme Court considered an injury occurring along an access route near the employer’s premises. The Court recognized that a route may effectively become part of the jobsite where employees are required to traverse it, with the employer’s knowledge or direction, to reach the actual worksite. The rule has been applied where the route is the only practical or customary means of access and presents a particular hazard associated with that route that causes or contributes to the injury.
Importantly, this exception does not require the route to be the only physically possible way to reach the workplace. Courts have considered whether it was the only practical route or one customarily and normally used by employees. Relevant considerations include whether the route was the only practical or customary means of access, the employer’s knowledge or direction regarding its use, its proximity to the worksite, the availability of reasonable alternative routes, and whether a particular hazard associated with the route caused or contributed to the injury.
At the same time, merely using the same route every day does not necessarily transform it into part of the jobsite. The hazardous-route analysis remains fact-specific. Washington courts have declined to apply the exception where the circumstances did not establish a particular hazard associated with the route that caused or contributed to the injury. The availability of other reasonable or practical routes may also weigh against application of the exception.
These cases illustrate why the precise location and circumstances of an injury immediately before or after work can be important. Relevant questions include whether the injury occurred on the employer’s jobsite or in an area used or controlled by the employer; if the injury occurred in a parking area, whether the worker was merely coming to or going from work or was otherwise engaged in an activity within the course of employment; whether the worker was using the only practical or customary route to the worksite; whether reasonable alternative routes existed; whether the employer knew of or directed employees to use the route; and whether a particular hazard associated with the route caused or contributed to the injury.
The distinction can be significant. Under the right circumstances, an area outside an employer’s property can effectively become an extension of the jobsite. At the same time, proximity to the workplace or habitual use of a particular route, standing alone, does not necessarily bring an injury within the course of employment. As with many workers’ compensation issues, the specific facts matter.
For employers evaluating claims involving injuries sustained while a worker is arriving at or leaving the worksite, the attorneys in our Washington practice group are available to discuss how the coming-and-going rule may apply to the particular circumstances of a claim.