From the Archive: Icy weather, the “zone of employment” and workers’ compensation

Is a slip injury covered by workers' comp?
Is a slip injury covered by workers’ comp?

Very disagreeable seems to have arrived early this December 2018, so I have decided to republish this post from last January. Take heed on how to handle slips and falls by employees.
It is winter time in the Northern Hemisphere. As a result snow and ice has fallen making areas treacherous for travel, especially for walking. Here in the Southeast, we had a couple of inches of snow and ice fall the last couple of days. Although the sun is now out there are still some roads and parking lots that have not had the sunshine on them and melting the ice. Thus some hazards still exist to employees trying to make their way to work. If one of your employees is injured on ice coming to work are they covered under workers’ compensation?

It depends

As with many questions of this sort, the answer is a resounding “It depends.” It will depend on the workers’ comp law in your state, so make sure you check it thoroughly, but generally, in most states, an employee who is injured in the course of coming and going from work is not covered by workers’ compensation insurance if they are employed at a fixed site. Thus, an employee who is in a car accident while commuting is not covered by workers’ comp. However, a sales rep or repair technician, who travels directly to a customer site from their home, may be covered.

What about slips in the parking lot?

In the case of the company parking lot, the answer is again “It depends.” This is where the term “the zone of employment” comes in to play. The “zone of employment” is that area either owned by, or under the control of the employer, that surrounds the fixed site location of the employer. This includes the parking lot, walkways and entryways into the building. The control of these sites is generally determined by ownership or by a lease agreement. Responsibility will often determine accountability in injury situations. Let’s look at a couple of examples.

Single property

If a company is located on a single piece of property and the parking lot is for the exclusive use of the employees of that company, then the concept of “zone of employment” comes in to play. The employer, as the owner of that property, is responsible for keeping it clear and safe. Thus if an employee fell on uncleared ice in that lot then an injury sustained would likely be covered by workers’ comp.

Common property

In the case where the business is located in an office area where there are many businesses that lease from the property owner, there may not be any “zone of employment.” The property owner may be responsible for clearing snow and ice from the parking lot and thus any injury incurred would most likely be covered by their liability insurance and not the employer’s workers’ comp. The terms of the property lease will be important. In some situations, even though the parking lot is not owned by the employer, a parking area may be designated for a specific employer and thus, by the terms of the lease, they may be responsible for keeping that area clear. In that case and slip and fall comes back into the realm of “zone of employment.”
In situations where there is no parking lot at all, such as an office building in New York, unless the employer owns the building, there is no zone of employment and any slip on the sidewalk would not be covered.

Just be aware

Naturally, this blog post cannot cover all situations. You need to be aware of your state law and your responsibilities as either a property owner or lessee, to determine how you should consider injuries from slips and falls. Having a statement in the employee handbook might be a good course of action as well or an annual published statement before the ice and snow falls. You may also need to consult with your individual counsel if injuries arise.
References:
Employers Can Be Responsible for Falls in Parking Lots, Christopher Gray of Wickens, Herzer, Panza, Cook & Batista Co.
Parking lot slips, falls and the “coming-and-going rule”: is your parking lot within the zone of employment?, William Ross and William McKinley of Calfee Halter & Griswold LLP

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