Employees Choosing Riskier Travel Options; Where Do Employers Draw The Line?

My boss would rather drive eight hours than fly two. Hes among the growing ranks of employees who are choosing to drive on business trips rather than fly, despite the fact that its much safer, statistically speaking, to fly.

According to the National Safety Council, 46,749 people died in what the Council calls “transport” deaths in the year 2000. These are deaths that are directly attributable to various modes of transportation. And of these, only 777 resulted from air accidents.

The odds of dying in an air crash in a given year are one in 354,319, but the odds of dying in a car accident are one in 18,585, again according to National Safety Council records.

In fact, the National Highway Traffic Safety Administration clearly states that traffic fatalities account for more than 90 percent of transportation-related deaths each year.

The gut-wrenching fear of flying overwhelms these cold statistics, however, especially in the immediate aftermath of an air disaster when peoples minds are ripe with images of the carnage that typically results from an airliner crash. And some prefer to drive simply because of the increased hassle-factor of flying.

But if driving on business trips really is more dangerous than flying, do businesses have a responsibility to manage the increased risk? Should employees be allowed to choose a more dangerous mode of transportation because of personal fear?

Its hard to argue with a person who just doesnt want to fly. But I dont think its unreasonable for a company to differentiate between what it considers work-related versus none-work-related travel activities during trips that are longer than necessary because an employee chooses not to fly.

The highway travel exposure includes the potential for injury to employees. There is also the possibility that employees, as agents of the company, might injure others or damage the property of others. A big concern is how workers compensation exposures may be affected.

Most employers fall under the purview of state workers comp systems, whether they choose to insure or self-insure the risk. Although the standards for compensability may be state specific, certain broad issues should be considered when discussing an issue such as employee choice of mode of transportation.

Typically, travel to and from work is not compensable unless a causal connection between the injury and the employment can be shownknown as the “going and coming rule.”

There is an exception to the “going and coming rule,” however.

Traveling employees are granted virtually continuous workers comp coverage in most jurisdictions, unless the injury occurs while the employee is specifically engaged in a personal errand.

So what constitutes a personal errand that is not incidental to work?

The District of Columbia Court of Appeals, in Kolson v. D.C. Department of Employment Services and Transportation Leasing Inc., ruled that a traveling employee was entitled to workers comp benefits after being assaulted while walking to a hotel.

In Kolson, a bus driver returned to the terminal after an out-of-town assignment and elected to stay in an employer-paid hotel room because he was too tired to drive home. He was assaulted while walking to the hotel.

The court reasoned that the employees decision to stay overnight and his subsequent walk to the hotel were “reasonable and foreseeable” activities “reasonably related to his employment” and therefore compensable.

The court cited the Supreme Court of Minnesota, which previously had ruled that “reasonable activities are those which may normally be expected of a traveling employee as opposed to those which are clearly unanticipated, unforeseeable and extraordinary.”

Clearly, deciding to stay in the hotel was not a serious personal departure from work-related activities when applied to a traveling employee.

Conversely, the Utah Court of Appeals refused to grant workers comp benefits to a college professor who, although considered a traveling employee, was injured during a side trip prior to a work-related conference.

This case is Buczynski v. Industrial Commission of Utah. The professor left two-and-a-half days early for her business trip and made a side excursion to a place in which she previously had resided.

Ms. Buczynski contended that her early departure benefited her employer by saving on airfare and that she worked during most of the extra days. The administrative law judge, however, did not accept this reasoning and the court upheld the ruling.

How do these cases play into the question of employees choosing one mode of transportation over another for personal reasons? And is choosing to drive and thus taking a longer, perhaps statistically more dangerous trip, more like Kolson or Bucynski?

It depends. As usual, exposures and how theyre handled hinge on the specifics of each case, and most cases probably fall somewhere in between the two extremes.

In Kolson, the bus drivers employer had okayed his decision to stay overnight and was paying his expenses. His decision did not diverge from company policy for traveling employees.

In Buczynski, the claimants boss testified that he had signed her travel authorization form and that the university encouraged faculty members to leave early if they could save airfare.

But she was injured in the pool area of a hotel 150 miles from the site of her conference. And she was not successful in persuading the court that her extra days of travel actually benefited her employer.

This is not to say that legitimate employee concerns about flying are not reasonable or that employers should discount them in setting travel policies.

It does, however, illustrate the need to understand and address the potentially expanded risks that a company may encounter when employees choose to spend more time traveling than is absolutely necessary.

A company should outline what it considers to be reasonable work-related incidental activities and set reimbursement policies accordingly. It also needs to spell out that an injury arising from personal activities during a trip may not be compensable. Although there is no guarantee that a workers comp board or court will adhere to the company policy, at least ground rules are established.

It seems reasonable that an injury in a hotel exercise room during a business trip would be incidental and reasonable.

But it seems far fetched to argue that stopping at say, the Grand Canyon on the way to a conference in Las Vegas, would in any way further the purposes of the employer. In this case I would argue against compensability.

The difference might be defined in what portions of road trip expenses are reimbursable. For example, employees should be required to pick up personal expenses for side trips, as well as the excess of auto travel costs over air costs.

This is shown in a discussion of the continuous coverage rule in Couch on Insurance (a legal reference summarizing various aspects of insurance principles as derived from case law written by Lee R. Russ in consultation with Thomas F. Segalla):

“Where the activities of the employer and employee are parallel, the courts readily find the injury compensable; however, where the employees personal activities begin to outweigh the employers benefits, the courts will more closely scrutinize the availability of recovery.

“The nature of the deviation must be balanced against the clarity of the employers instructions and the effect of the activity on the employment relationship or the interests of the employer.” (Emphasis added.)

In other words, a clearly defined employer policy about what the company accepts as work-related travel activities could support employer arguments for or against compensability.

Diana Reitz is editor of the National Underwriter Company publication “The Tools & Techniques of Risk Management & Insurance” as well as the “Risk Funding” & “Self-Insurance” Bulletins, both available at www.nationalunderwriter.com/nucatalog

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, October 10, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.