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Until 1979 New Jersey had a doctrine known as the “going and coming rule,” and that rule basically said that employees were not covered for workers’ compensation when they were going to work or coming from work. Scores of exceptions emerged over the years, creating a patchwork of inconsistency, thus prompting the New Jersey Legislature to adopt a more uniform doctrine known as the “premises rule.”
There is one basic principle for the premises rule as well as one main exception: 1) An employee is covered when he or she is injured on work premises if those premises are owned or controlled by the employer; and 2) An employee is covered when he or she is required by the employer to be away from the employer’s place of employment when performing duties authorized by the employer.
Think of the premises rule as a protective blanket covering the employee when situated on any area owned or controlled by the employer, including parking lots owned or controlled by the employer, walkways owned or controlled by the employer, cafeterias, restrooms or offices owned or controlled by the employer. It makes no difference where on the premises the injury takes place: one is just as protected for workers’ compensation purposes in a company cafeteria, coffee station, restroom or company parking lot as in one’s own office.
The old adage in real estate applies: location, location, location. The premises rule focuses literally on where the accident or injury takes place, and a few feet off-premises can make all the difference in the world. In one case, a Harrah’s casino dealer finished her shift and proceeded to her car. As the claimant’s vehicle pulled out of the lot, it collided with another vehicle. The impact occurred on MGM Mirage Boulevard, but a portion of the rear of claimant’s vehicle was positioned over the Harrah’s driveway apron. The Judge of Compensation measured the area of the injury and determined that one foot of claimant’s vehicle was still in the area of the parking lot controlled by Harrah’s. Therefore the case was found compensable. Burdette v. Harrah’s Atlantic City, No. A-4797-12T1 (App. Div. January 17, 2014).
It is important to appreciate that it doesn’t matter in New Jersey whether the employee has clocked in or clocked out. That makes a difference under the Fair Labor Standards Act but not for purposes of workers’ compensation. One could clock out of work but linger for 30 minutes talking to a co-worker about the latest Netflix series and then slip and fall in an employer parking lot. The Judge of Compensation will focus on whether the employee was on the work premises for work purposes and whether there was any deviation from employment, such as playing soccer in the parking lot with friends. Lingering after work to chat with co-workers is not a deviation from employment, and it happens all the time, as does arriving at work early before the employee’s technical start time.
For coverage under the premises rule, the employee must be on the premises for purposes of doing work. If an employee visits the office on a Sunday when the office is closed to pick up papers for the Fantasy Football team, only to slip and fall in the building, that injury would not be covered for workers’ compensation purposes because it did not occur during the course of employment.
But what about parking lots that are not owned or controlled by the employer? Where does the work premise begin when someone arrives at a parking lot adjacent to an office where the employer is just a tenant on the third floor? The premises rule in that situation does not protect an employee injured in that parking lot because the employer is just a tenant and generally would not own or control the lot. Reading the lease agreement is essential, of course. The same is true of injuries in the entrance way of the office building, or even the elevator in most situations. In the third floor tenant situation, the premises are only reached when the employee gets to the third floor because that is the area controlled or owned by the employer. Exceptions exist where the employer has a lease that requires the employer to pay for maintenance, snow removal or there is other evidence of control by the employer of the parking areas.
The last point to remember about the premises rule is that the injury must always arise from the employment to be compensable. Injuries frequently occur at work that are not caused by work. Example: an employee with arthritis is walking to the manager’s office and feels sudden pain in her knee. She does not fall but some damage definitely occurs in the process of walking. Judges will generally find that such an injury did not arise from work because the work conditions or premises did not cause it. That type of injury could have happened anywhere, and the employee’s injury was not caused by a fall on a hard surface of the premises (which would change the result). The same is true of an employee who has shoulder problems from playing basketball but who feels sudden pain at work while putting on his coat. That sort of injury happens at work but it is not compensable because work conditions did not cause it.
In the last analysis, the premises rule is a huge improvement over the former “going and coming rule.” In the 40 years since the 1979 Amendments, there has been a great deal of predictability in court decisions. New Jersey judges and practitioners know the case and statutory law extremely well. As a result, employers and adjusters have been able to make consistent and well-informed decisions on whether to accept or deny such cases. But there will always be new and interesting fact patterns under the premises rule. For one, more and more employees work from home, presenting new and challenging fact patterns for judges to consider. As these home injuries occur in different parts of the home or driveways outside the home, cases will be tried, fundamental principles will be applied, and fairly predictable rules will emerge.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.