Private Employers’ Workers’ Compensation Liability For On-call Employees
Many private employers have employees who are “on call,” either at scheduled times or on a continuous basis. In fact, one may argue that with the invention of beepers and cell phones, most employees are “on call,” even if not so designated.
This article provides a brief overview of the laws that address a private employer’s liability under the workers’ compensation laws for its on-call employees,1 and those employees who reside on the company premises but who are not on duty at all times.2 This article does not address issues of compensation of such employees under federal and state laws.3 For purposes of this article, on-call employees are those employees subject to the sudden call of the employer to respond to a situation that requires the employee to report to work or perform work on behalf of the employer.
Workers’ Compensation in General
Under F.S. Ch. 440, which addresses an employer’s workers’ compensation liability, the liability of an employer to an injured, on-duty employee is generally limited. Workers’ compensation laws were designed to require an employer to compensate an employee for on-the-job injuries regardless of fault. In exchange, an employer’s liability is generally limited to the remedies set forth in Ch. 440.4
Under Florida law, an employer however is generally not liable under workers’ compensation laws to an employee who suffers injury5 when the employee is operating outside the scope of his employment. F.S. §440.92 sets forth five specific situations in which an employer will not generally be liable to an employee injured in job “associated” activities, but which occur while the employee is not “on the job.” These situations include recreational and social activities,6 coming or going to work,7 deviation from employment,8 traveling employees,9 and subsequent intervening accidents.10 While Ch. 440 contains other exclusions and exemptions, this section is discussed because it is most applicable to the issue of whether an on-call employee is entitled to workers’ compensation benefits in a given situation.
Because the workers’ compensation statutes do not directly address private on-call employees, nor employees residing on the premises of an employer who are on call at all times or even designated times, this article sets forth the arguments that can be made both for and against coverage for the on-call employee. While the on-call employee and residential employee are generally two separate issues, with respect to whether workers’ compensation coverage applies in a given situation requires a discussion of both, as there is some overlap in the case law.
Simply being “on call” does not make an employer liable to its employee under workers’ compensation laws,11 when the employee is not engaged in the business of the employer. And while public employees such as police officers and other emergency personnel are generally considered to be on duty at all times,12 thus creating a broad exception for certain public employees, there is no on-call exception rule in Florida for private employees.
Even a private employee who is subject to call at all times is not necessarily considered “on duty” at all times;13 nor does the single circumstance of irregular hours justify entitlement to workers’ compensation. The case law which addresses this issue, generally deals with the special requirements set forth in §440.092.
As stated above, §440.092(1) addresses an on-call employee who is injured while engaged in recreational or social activities. Such injuries which occur as an incident to employment and not directly beneficial to the employer do not entitle an employee to compensation unless the injury arises out of an incident which is directly beneficial to the employer.
The Going or Coming Rule
F.S. §440.092(2) limits an employer’s liability to employees while “going or coming” to work, as such travel does not generally arise out of the course of employment.14 This statutory provision requires more scrutiny than the “recreational or social” provision, and has been the subject of more litigation. For example, injuries occurring while transporting people while coming from or going to work, or running personal errands before or after work may expose an employer to liability. Liability may also be imposed while the employee is on a personal errand and then beeped and asked to run a business errand.15
While the following language comes from a case involving a public officer, the holding would likely apply to a private employee. Under workers’ compensation law, “an injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation, unless the employee was engaged in a special errand or mission for the employer.”16 The facts surrounding the case will decide whether liability will be imposed.
The exception associated with law enforcement officers does provide some guidance. They are excepted from the rule in most circumstances because they are subject to an on-duty status 24 hours a day, depending upon the exigencies of the circumstances. While this exception is statutory, an employee could argue that being on call at certain times, or residing on the employer’s premises, puts him or her in the same position as an on-duty public officer, and thus entitles the employee to an exception from the going or coming rule.
The court in Ward v. City of Miami Springs, 249 So. 2d 3 (Fla. 1971), held that by the very nature of the service the claimant performed, he was continuously instructed with certain duties. His personal life was subservient at all times to call of official service. He was, so to speak, on guard 24 hours a day, with no increase in salary in proportion to the time devoted. While this case involved a police officer and was decided prior to the codification of the “going and coming rule” and certain changes in the workers’ compensation laws, the reasoning could arguably be applied to private employees.
Here is one example of how a private, on-call employee may make this argument. The employee is not on duty. While not working, he is taking a shower. The phone rings or the beeper goes off. It is the employer requesting the employee to come to work. If the employee slipped getting out of the shower to answer the call or beep, he may argue that he is entitled to workers’ comp.17 Such a holding is realistic. For example, in American Airlines v. LeFevers, 674 So.2d 940 (Fla. 1st DCA 1996), a flight attendant who was on layover was severely injured while swimming. The court held that because, among other reasons, “she could have been called” by her employer during her rest time, she was entitled to workers’ compensation for her injuries.
Let’s go back to our example of our on-call employee in the shower. The employee has been beeped to come to work, completes his shower quickly and jumps in the car as the employer requested he “rush to work.” Under what is known as the “special exception” rule, the “irregularity or suddenness of a call from the employer” subjects an employer to the liability of the workers’ compensation laws.18 In our example, the employee gets injured on the way to work and argues that although he was not working at the time,19 he would not have been traveling but for the call to work, which was for the sole benefit of the employer and which resulted from the suddenness of the call requiring him to come to work. Courts have held that the suddenness of an employer’s call places an employee outside the “going or coming rule.”
The Bunkhouse Rule
While there is limited case law on private, on-call employees, the law governing residential employees gives us insight as to how a court may rule when an on-call employee is injured in a particular situation.
The bunkhouse rule provides that when the contract of employment contemplates the employee shall sleep on the employer’s premises, as an incident to the employment, and the employee is injured while not engaged on a purely personal mission, the injury is compensable.
The general rule is that if an employee is required to live or board on the premises of an employer, either by terms of the contract of employment or by the necessity of the work, an injury received while making reasonable use of the premises may be compensable, though the employee is not at work at the time of the injury.”20 However, some courts have held that the employee’s employment also must be a major contributing cause to the injury.21
One case finding contrary to the above-cited proposition is Grenon v. City of Palm Harbor, 634 So. 2d 697 (Fla. 1st DCA 1994). In Grenon, a firefighter on a 24-hour shift injured himself on the employer’s premises while putting on his underwear after a shower. The court held he was not entitled to workers’ compensation benefits because the injury did not arise out of the conditions in which the claimant lived nor did the injury arise in any way out of his employment. The court noted that allowing compensation would give the on-call employee greater coverage than other employees, where the living conditions did not contribute to the loss.
So, what happens if a residential, on-call employee is walking on the grounds of his employer solely for his own purposes, without performing any duties whatsoever for the employer, and suffers an injury? While the case law appears to assess each case on a factual basis, a summary review of the cases suggests the employer should argue that unless the injury was caused by a hazardous condition for which the employer would otherwise be liable, liability under workers’ compensation should not be imposed. The employee should argue that because he was required to reside on the premises, be at a particular location by the employer, or was injured heading to a particular location after being beeped, regardless of the cause of the condition, liability under workers’ compensation arguably should be imposed. As case law exists supporting both arguments, the facts and jurisdiction will help determine the probable outcome considering the above cited rules and laws.
While §440.092(3) limits liability of employers when an employee is injured when deviating from the course of employment, there are exceptions to this rule. An employee may run “special errands” or act with “dual purpose” even if he or she is not “working” per se. If the employee is allowed to mix personal time and employment time, for example running employer and personal errands at the same time, the employer could be exposed to workers’ compensation liability for injuries occurring during the entire time.22 This is known as the “dual purpose” doctrine and provides that when employment related tasks are undertaken concurrently with nonemployment-related tasks, liability may attach to the employer.
Thus, if the employee is solely on personal time, for example running errands on his lunch hour, the employer should not be liable for his acts under workers’ compensation.23 However, if the employee is beeped, and asked to run a special errand for the employer, the employer may be subject to workers’ compensation liability.24
Exceptions to the exemption from workers’ compensation liability may arise on a case-by-case basis. This article does not address each exception in detail, but rather gives a simple overview of what arguments may be made, when liability may be imposed upon an employer for an on-call employee’s injuries, or injuries suffered by similarly situated employee such as a residential employee, under workers’ compensation laws.
In conclusion, employers should be aware of the potential workers’ compensation exposure for private, on-call employees and the exceptions to the general rule precluding workers’ compensation liability of an employer when an employee is not “on duty.” One recommendation to limit liability is to have the employee sign an employment agreement which sets forth the terms of employment, including what constitutes employment, the employee’s on-call status, the employee’s rights, and the employer’s liabilities, within the letter of the law.25 Given the fact that this issue is not addressed in the statutes and the fact there is limited case law on this issue, employers would be wise to carry workers’ compensation insurance to cover such situations in order to minimize other liability exposure.
1 The article peripherally addresses the liability of employers to third parties in on-call situations, but does not address that subject in any detail.
2 This article is not intended to be a complete discussion of the workers’ compensation laws, but only those as they relate to the subject of this article.
3 Such as the Fair Labor Standards Act, which address overtime pay.
4 For example, there are exclusions for and exceptions for employees who cause their own negligence or who are injured because of intoxication.
5 Or to third parties for the acts of an employee acting outside the scope of employment.
6 Fla. Stat. §440.092(1). Recreational or social activities are not compensable unless such activities are an expressly required incident of employment and produce a substantial and direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.
7 Fla. Stat. §440.092. An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.
8 Fla. Stat. §440.092(3). An employee who is injured while deviating from the course of employment, including leaving the employer’s premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to save life or property.
9 Fla. Stat. §440.092(4). An employee who is required to travel in connection with his or her employment who suffers an injury while in travel status shall be eligible for benefits under this chapter only in the injury arises out of and in the course of employment while he or she is actively engaged in the duties of employment. This subsection applies to travel necessarily incident to performance of the employee’s job responsibility but does not include travel to and from work as described in §440.092(2).
10 Fla. Stat. §440.092(5). Injuries caused by a subsequent intervening accident arising from an outside agency which are the direct and natural consequence of the original injury are not compensable unless suffered while traveling to or from a health care provider for the purpose of receiving remedial treatment for the compensable injury.
11 Or to third parties for the acts of the employee.
12 Fla. Stat. §440.091.
13 Eady v. Medical Personnel Pool, 377 So. 2d 693 (Fla. 1979).
14 See supra note 7.
15 If liability arises, it would extend beyond workers’ compensation to third parties injured because of the employee’s liability.
16 Fla. Stat. §440.092(2).
17 See Swartz v. McDonald’s Corp., 788 So. 2d 937 (Fla. 2001) (Every case is decided on a case-by-case basis when looking to exceptions under the statute).
18 Gray v. Dade County, 433 So. 2d 1009 (Fla. 1st D.C.A. 1983).
19 Subjecting him to exclusion under the coming and going rule of Fla. Stat. §440.092(2).
20 Carr v. U.S. Sugar Corp., 136 So. 2d 638 (Fla. 1962).
21 See Vigliotti v. K-Mart Corp., 680 So.2d 466 (Fla. 1st D.C.A. 1996).
22 See Tampa Airport Hilton Hotel v. Traveler’s Ins. Co., 557 So. 2d 953 (Fla. 1st D.C.A. 1990).
23 See Central Air Conditioning Co. v. Garren, 239 So. 2d 497 (Fla. 1970).
24 Remember, there are other liability issues an employer must still deal with beyond workers’ compensation; for example, if the employee is driving an employer’s vehicle, the employer must deal with liability for the acts of employees to third parties.
25 For example, if the employee is given a company vehicle, the use of the vehicle and liability should be addressed. This is particularly important when the vehicle is being used to travel in response to a “call” to report to work, when the employee is “on call.”
Laurie S. Moss has been practicing since 1992 when she earned her J.D. from Nova University. She served on the law review and as editor for moot court. Ms. Moss presently serves as corporate counsel for Setnor Byer Insurance & Risk, where she deals with a wide range of legal, labor law, and human resources issues.
This column is submitted on behalf of the Workers’ Compensation Section, Dennis D. Smejkal, chair, and Pamela L. Foels, editor.