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Under Maryland Workers' Compensation Law An Employee's Commute is Typically not Covered - But, there are Exceptions

By: Gregory C. Mullen

An employee injured while going to or coming from his or her place of employment is typically not covered by Maryland Workers’ Compensation law.  There are some exceptions, however.  In the recent case of Calvo v. Montgomery Cty., the Court of Appeals held that under the special mission exception to the going and coming rule, employees might be compensated for injuries sustained when traveling to or from employer-mandated training.  Utilizing a fact-intensive inquiry, the case highlights how claims can arise out of situations that one might think are immune from liability.

Calvo, a bus driver for Montgomery County, worked a normal Monday through Friday workweek.  In May 2015, she received a letter advising her that she would need to attend “important mandatory training” on a Saturday, at a location not too distant from the bus depot where she normally reported for work.  While on her way to the training, Calvo was rear-ended by another car and sustained injuries.  Calvo filed a claim with the Workers’ Compensation Commission (the “Commission”).  After hearing testimony regarding the nature of the training she was to attend, the Commission awarded her compensation, deciding that Calvo’s injuries arose “out of” and “in the course” of her employment.

The County sought review of the Commission’s decision by the Circuit Court of Montgomery County.  The County argued that the “going and coming rule” (the “Rule”) prohibited recovery because Calvo was on her way from her home to work. Calvo argued that compensation was warranted under the “special mission” or “traveling employee” exceptions to the Rule.  The Circuit Court granted the County’s summary judgment motion, which reversed the decision of the Commission, and the Court of Special Appeals affirmed in an unreported opinion.  The Court of Appeals reviewed the decision of the Court of Special Appeals and held that the lower courts erred in granting summary judgment.

The Court of Appeals first noted that an injury sustained by an employee while going to or coming from work typically is not considered to be “in the course of employment” and, therefore, is not compensable.  The logic behind this rule is that the employee faces the normal dangers of other commuters and, therefore, the risks are not attributable to their employment.  However, some exceptions to the Rule exist.  Two of these exceptions are the “traveling employee” exception and the “special mission (or errand)” exception.

To avoid application of the Rule, Calvo argued that she was a traveling employee.  A traveling employee is one “who is required to travel away from … [an] employer’s premises in order to perform his [or her] job.”  The Court was not persuaded.  The fact that Calvo had to drive from her home to a different, “but not very distant,” work location did not allow her to use the traveling employee exception.  She was not on her employer’s premises when she was injured.  In addition, she was not traveling between work-sites, on duty, or compensated for the trip.

The Court of Appeals observed that Calvo would have “better luck” arguing that the special mission exception to the Rule applied in her case.  Under the special mission exception, an employee is acting in the course of employment, and therefore covered by Workers’ Compensation, when traveling “on a special mission or errand at the request of the employer and in furtherance of the employer’s business, even if the journey is one that is to or from the workplace.”  This analysis is fact-based, and turns in part whether the mission is sufficiently “special.”

Calvo argued that the special mission exception applied because (a) she was required to attend the training, (b) the training was on a day that she normally did not work, (c) it was in a different location, (d) the training was distinct from her normal role, and (e) attending the training benefitted her employer.  The County countered that the training was “routine,” that Calvo was not compensated for her travel, and that there was no urgency (she was given ten days’ notice of the training). 

In determining whether a mission is sufficiently “special” for the exception to apply, the Court listed three factors.  First, consideration must be paid to the “relative regularity of unusualness of the particular journey.”  The more usual and regular the trip, the stronger the presumption that the Rule applies.  Second is the onerousness of the journey compared to the service performed at the destination. If the employee travels a long distance to perform minimal services, the exception applies because the journey is part of the service. Or, if it is an onerous journey, as determined by the time of day, travel conditions, or a workday versus non-workday, the exception may apply.  Finally, the Court can consider the suddenness or the urgency of the call to work as factors.  The Court was quick to point out that the “suddenness” factors can help support a conclusion that a mission was special, but are not dispositive.

The Court of Appeals then applied these factors.  First, the unusualness of the journey militated in favor of Calvo – the training session to which she was traveling occurred only once per year. Second, the onerousness of the journey was in her favor.  For this factor, a Court compared the task to the trip, and considered the circumstances of the journey, such as time of day, the day of the week, or conditions of travel.  Having to report to a different location, on a usual day off, helped make the journey onerous. 

The Court was not persuaded by the County’s lack of urgency argument, which rested on the fact that Calvo was given 10 days’ notice of the training.  The Court addressed this element but did not treat it as a necessary condition for recovery.  However, the Court did admit that this was a “close case.”  It ruled that the evidence created enough of an issue of fact that the case should have been sent to a jury.

Navigating the waters of what does and does not fall under the Workers’ Compensation Act can be tricky for employers and employees alike.  The analysis in Calvo is very fact-intensive thus highlighting how important it is that employers receive legal advice on issues related to employment and Workers’ Compensation law.  If you have any questions about this, or if you want to know in advance whether a special company event might result in liability under the Workers’ Compensation law, please contact Daniel S. Katz, Gregory C. Mullen, or any other member of Tydings’ employment law, business, or litigation departments.

 

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