Hybrid Work Environments May Impact 'Coming and Going' Rule Defense in Kentucky

Hybrid Work Environments May Impact ‘Coming and Going’ Rule Defense in Kentucky

Lexington, Ky. (July 9, 2024) - The longstanding legal doctrine of respondeat superior holds employers vicariously liable for the negligent acts of their employees committed in the course and scope of their employment. Conventionally, the legal concept has been straightforward in its application. However, with the modern-day workplace becoming less defined, Kentucky employers that utilize a hybrid workplace—allowing remote and in-person attendance—may be exposed to additional liability when their employees are traveling to and from the office. This article is focused on Kentucky employers that utilize a hybrid workplace and the accompanying risk for additional liability exposures.

Traditionally, the “Coming and Going Rule” protects Kentucky employers from liability arising from negligent acts by employees on their journey to and from the workplace. Kentucky law reasons commuting to and from the workplace is not linked to the employment relationship, as the hazards ordinarily encountered in such journeys are not incident to the employer’s business. Perils encountered during travel to and from work are no different from those encountered by the general public at any given time on the road. Of course, with rules come exceptions.

There are three exceptions to the Coming and Going Rule that could be problematic for Kentucky employers utilizing a hybrid work format. These are the “special errand,” “travel,” and “service to the employer” exceptions. Each is addressed in turn.

A “special errand” arises where an employee’s travel involves a mission for the employer distinct from communicating back and forth to a fixed place of employment. For example, in Husman Snack Foods Co. v. Dillion, the special errand exception precluded the employer’s Coming and Going Rule defense where an employer expected its employee to attend an out-of-town meeting, and the employee allegedly committed a negligent act on his return home. 591 S.W.2d 701, 704 (Ky. App. 1979). The Court distinguished these facts as the employee was on a mission that was distinct from driving to or from his fixed place of employment. The employer, therefore, was vicariously liable for the employee’s negligent acts.

The “travel” exception to the Coming and Going Rule applies when travelling is an essential element of the employment relationship and subject to the employer’s control at the time of travel. See Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018). In Feltner, a delivery person was driving home after work and struck a pedestrian. The Court upheld the employer’s Coming and Going Rule defense because the delivery person was required to clock in and out at the store, and was not allowed to work from home. The Court reasoned once the delivery person was clocked out, he was at liberty to do what he pleased and not subjected to the employer’s control at the time of the accident. Id. at 4. Although the delivery person’s job inherently required travel, the employer’s clearly defined expectations gave rise to the Coming and Going Rule defense.

The “service to the employer” exception is implicated when work-related travel is undertaken to benefit the employer. See Olsten-Kimberly Quality Care v. Parr, 965 S.W.2d 155, 157 (Ky. 1998). When deciding whether the employee’s travel benefits the employer, Kentucky courts consider: (1) whether the employee is paid for individualized time; (2) whether the employee is paid for general travel expenses; and (3) whether the employer provided a company vehicle to the employee. Id.; See Also Receveur Constr. Co./Realm, Inc. v. Rogers, 958 S.W.2d 18, 20 (Ky. 1997); Fortney v. Airtran Airways, Inc., 319 S.W.3d 325, 329 (Ky. 2010). The “service to the employer” exception precluded the Coming and Going Rule defense where a nursing assistant was involved in an accident on her way home after work. As the Court reasoned, the nursing assistant: (1) provided home health care services at patients’ homes; (2) traveled to her patients’ homes directly from her home; (3) did not report to the employer’s physical office; and (4) was reimbursed mileage for using her own vehicle. See Parr, 965 S.W.2d at 156. The Court further reasoned the nursing assistant was providing a service to the employer at the time of the incident because traveling from patients’ homes was a part of her overall job responsibility. Id.

While the Coming and Going Rule appears straightforward in its application, Kentucky courts undertake a very fact specific analysis to determine whether an employer will be held responsible for its employees’ negligent acts traveling to and from the workplace. Under a hybrid model of employment, employees often commute to and from work on an irregular and inconsistent basis. Clever attorneys will attempt to represent irregular commutes as special errands, or services to the employer to attempt to circumvent the dispositive Coming and Going Rule defense. If Kentucky employers are unclear with expectations and requirements of their employees, the modern-day hybrid workplace embraced by many Kentucky employers may give rise to further erosion of the Coming and Going Rule defense.

In order to avoid unnecessary exposure to vicarious liability claims, Kentucky employers should be clear as to how many hours an employee may be permitted to work remotely. Kentucky employers should also set clear expectations with employees’ in-office attendance. A well-defined and up-to -date scheduling system will help prevent any argument that a commute is an extra service or special errand. Additionally, Kentucky employers should also maintain well-defined job descriptions for its employees. If an employee’s duties change, descriptions should be promptly updated and communicated immediately to the employee. Kentucky employers should be diligent and clear with their expectations, practices, and descriptions to prevent clever attorneys from portraying business practices in a manner that further erodes or precludes the Coming and Going Rule defense.

For more information, contact the author of this alert. Visit our General Liability Practice page to learn more about our capabilities in this area.

Author:

Bradley S. Fyffe, Associate