Employees Choose Riskier Travel Modes
By Diana Reitz
My boss would rather drive eight hours than fly two. He's among the growing ranks of employees who are choosing to drive on business trips rather than fly.
This despite the fact that it's 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.
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 people's 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?
It's hard to argue with a person who just doesn't want to fly. But I don't think it's unreasonable for a company to dictate what the company considers 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 as well as the possibility of employees, as agents of the company, injuring others or damaging their property. In this column I'll confine my discussion to how workers compensation exposures may be affected.
Most employers fall under the purview of state workers compensation 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 shown. This is known as the “going and coming rule.”
There is an exception, however, to the “going and coming rule.”
Traveling employees are granted virtually continuous workers compensation coverage in most jurisdictions unless the injury occurs while the employee is specifically engaged in a personal errand that is not incidental to work.
So, what constitutes a personal errand that is a distinct departure 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 compensation 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 employee's decision to stay overnight and his subsequent walk to the hotel were “reasonable and foreseeable activit[ies] 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 sleep 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 compensation 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.
Buczynski contended that her early departure benefited her employer by saving on airfare and that she worked during most of the extra days, but the administrative law judge did not accept that reasoning. 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? 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 they're handled really hinge on the specifics of each case, and most cases probably fall somewhere in between the two extremes.
In Kolson, the bus driver's 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 claimant's 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 of 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.
But it does 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 should spell out the fact that an injury that arises from personal activities during a trip may not be compensable.
There's no guarantee that a workers compensation board or court will adhere to the company policy, but at least it establishes the ground rules.
It seems reasonable that an injury in a hotel exercise room during the 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. As such, I would argue against compensability.
The difference could be defined in what portions of road trip expenses are reimbursable. Employees should be required to pick up not only personal expenses for side trips, but also the excess of auto travel costs over air costs.
This is shown in a discussion of the continuous coverage rule in Couch on Insurance:
“Where the activities of the employer and employee are parallel, the courts readily find the injury compensable; however, where the employee's personal activities begin to outweigh the employer's benefits, the courts will more closely scrutinize the availability of recovery.
“The nature of the deviation must be balanced against the clarity of the employer's 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.