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A careful commute

The job may be the reason for the journey to and from work, but that’s not good enough for compensation if a worker gets hurt on the way

By Jeffrey R. Smith

For many of us, the workday pretty much starts when we leave our house, trudge to the car or transit stop, and begin the journey to work (whether still half-asleep or not). After all, if it wasn’t a workday, we wouldn’t be on that journey. And the day, however long it may be, doesn’t end until we walk back through the door and are comfortably ensconced back home.

But that’s not the case if you get hurt during that journey.

Take, for example, an Ontario worker who was employed with an employer that leased a few floors in a hospital. The employer leased a parking lot on one side of the hospital but also told workers about available parking nearby as well. The worker drove to work and parked in another parking lot near work but not in the lot leased by the employer.

The worker walked from the parking lot to the hospital and took a shortcut over a grassy area owned and controlled by the hospital, where there was a path leading to a parking lot beside the hospital but not the one leased by the employer. As the worker crossed the grassy area, she slipped and fell, breaking her leg. The injury left her unable to walk and therefore unable to work until her leg healed.

The worker applied for workers’ compensation benefits, but both the Ontario Workplace Safety and Insurance Board (WSIB) and the appeals tribunal denied her claim. WSIB policy dictated that injuries suffered by workers must happen on the employer’s premises and during working hours if the workplace is fixed, and during working hours and while on employer-assigned travel if it happens on the road.

In this case, the accident happened before the worker officially began her workday at the office and it wasn’t on the employer’s premises — only the area inside the hospital and the parking lot leased by the employer were considered the employer’s premises. As a result, it wasn’t considered in the course of employment.

Generally, regular commutes by employees to and from work are not considered in the course of employment. Only when the worker is at work or doing something for the employer, is the activity in the course of employment. While the commute to and from work is related to work, it’s mostly something done by every worker who doesn’t work from home and not tied to a specific type of employment or employer. In addition, each worker’s commute is individually different and unique to the person — and those unique aspects aren’t related to the type of employment or the employer.

But is it really that different if the worker in the situation above was able to get farther and then tripped and fell in the parking lot or areas leased by the employer? There have been instances of workers getting compensation for injuries suffered while on business trips because the accident happened in a location where the worker was because of assignment by the employer, and worker’s are on the commuting route because of their obligation to get to the location of work assigned by the employer.

Should the journey to work be considered in the course of employment? If it isn’t, of what is it in the course?

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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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