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Workers’ compensation: A matter of location

Should commuting be considered ‘in the course of employment’ if a worker is injured on the way to work?

By Jeffrey R. Smith

Health and safety is a top concern for employers, as nobody wants to see an accident that injures somebody — or worse. Employers must follow the regulations set out in occupational health and safety legislation, and injured workers can hurt productivity and complicate staffing. However, despite best efforts, workplace accidents still happen and workers get injured at their jobs. And that’s where workers’ compensation comes in.

Workers’ compensation is available in all Canadian jurisdictions and serves as a sort of safety net. Employers contribute to a fund and, if a worker is injured on the job and is unable to work for a period of time, the worker receives money from the fund to cover lost income. However, in these cases, the employer usually must submit an official report of the injury and the worker must apply for compensation. Whether the claim is accepted or rejected depends on whether the relevant workers’ compensation board determines if the worker’s injury was actually related to the job — usually defined in legislation as “in the course of employment.”

There have been many injured workers whose claims have been rejected because their injuries were not deemed to have happened “in the course of employment.” But what exactly does that phrase mean? Most workers’ compensation legislation has some sort of definition and it usually involves the worker on the employer’s premises during work hours. The commute to and from work usually is excluded, unless the job involves travelling to different sites and the worker is in an employer-owned vehicle. But there are different considerations that can come into play.

A few years ago, a cleaning woman for a company in a Toronto high-rise fell on a sidewalk in front of the company’s building just before she went in to start her shift. The worker tore muscles in her shoulder and knee, requiring surgery and preventing her from being able to work. Though she tried to work that day, the pain was too great, so she reported the accident to her supervisor, who completed a report for the Ontario Workers’ Safety and Insurance Board (WSIB). The worker filed a claim for compensation.

The WSIB and later its appeals tribunal denied the claim, since the injuries were sustained while the worker was on her way to work and before her shift started. Even though it happened right outside the building — the worker later claimed she fell on the stairs of the building, but there was no evidence to prove that — she wasn’t working and therefore didn’t meet the requirement of being “in the course of employment.” The WSIB’s operating policy manual supported this, as it stated “a worker is considered to be in the course of employment when the person reaches the employer’s premises or place of work.” This means only when reaching the employer’s floor in a building, or the elevator or stairs leading to the employer’s floor.

So when a worker is injured on the way to work, it’s unlikely the worker will be entitled to workers’ compensation — even if it happens right in front of the employer’s property, as long as the worker isn’t on the property. There have been cases where a worker injured in a parking lot at the workplace is entitled — but only if the parking lot is owned by the employer, or the employer specifically instructs employees to park in specific locations in the lot.

Injuries that happen to workers on the way to work have been a source of debate for workers’ compensation. After all, the worker wouldn’t be in that position if it weren’t for her employment and the job is the reason she’s commuting at that time. But there also have to be limits to compensation — otherwise, it could put too much financial pressure on the whole workers’ compensation system, or at least the companies that have to contribute to it.

Should injuries that happened during a worker’s commute be compensable, especially if they happen right outside the workplace? Where should the line be drawn?

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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