Key Takeaways

• Injuries sustained while going and coming from work are not compensable, but exceptions can apply with employer-provided transportation.

• No compensability when employer provides transportation for the exclusive use by the employee to mean the employee has exclusive use of the transportation for driving to and from employment.

• In evaluating a traveling employee as it relates to going and coming provision, the question is not whether they are a traveling employee, but rather whether they were in travel status at the time of the injury.

In Florida, Workers’ Compensation compensates employees for injuries “arising out of and in the course of employment.” The statute, Section 440.02 (19), sets forth coverage while an employee is traveling to and from work. The provision excludes injuries sustained during travel to and from work. However, the provision contains a conflated phrase “whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee.” It provides a condition for compensability on employer-provided transportation. An injury is not compensable where the employee’s transportation is available exclusively to the employee.

In Kelly Air Systems, LLC v. Dorina Kohlun, (1^st DCA March 16, 2022), the court noted that in applying this provision, decisions have simply restated the statutory language. The prior decisions never provided substantive guidance on the definition or interpretation of “exclusive personal use.” The court held that evaluating whether an employee has exclusive use should be in the context of the employee’s ability to use the transportation as if it were their personal property for the purpose of going to and coming from work. It does not require evaluating if the employee was able to use it for vacation or other types of travel. Inquiry should involve whether the employee must share the transportation with others such as an employer-provided carpool or if they must pick up fellow employees for going and coming from work. The question should be whether the transportation is available for the employee’s exclusive use for travel to and from work.

The court further evaluated the scope of the going and coming provision in relation to the traveling employee provision. This provision, Section 440.092(4), allows for compensability for employees while they are in travel status except for travel to and from work. The employee in this case was an air conditioning service technician that traveled to service calls. The judge of compensation had found that his injuries were compensable under this section because he was a “traveling employee.” The court clarified that the question was not whether he was a “traveling employee,” but rather whether he was in a “travel status” at the time of injury. It is not the type of employee, but it is the status of the employee at the time of injury.

Evaluating an employee’s “travel status” requires exploring when the employee’s work begins and ends. This will be a product of the employment agreement. Generally, “work” is the performance of an act or service in exchange for rumination (pay). Therefore, a critical inquiry with an employee whose work requires travel rather than a fixed workplace is whether the employee was receiving compensation at the time of the accident.