Are Traveling Employees Covered by Workers Compensation?
By Peg Kramer, AIC, CPCU
As a claims counselor, I get a lot of questions about employees who are required to travel for their jobs. Is my employee covered when he flies to San Diego for business? What if he takes a side visit as a tourist and is injured? Where exactly is the line drawn for traveling employees?
These are great questions and ones that everyone should be aware of. I am going to speak specifically about Wisconsin Workers Compensation coverage. Did you know that if you have employees working from their homes, and they are injured while working, they can be covered? Does that sound ridiculous? Think about it, if they were in your building and fell, they would be covered there. Our perception of safety for remote workers needs to extend beyond the brick and mortar properties you own.
Every claim should be investigated for specifics of the incidents: who, what, where and why. Even you the employer can add to the exposure with how you handle your traveling employees. Your company benefits when employees travel on behalf of the company. Everything that they do is to benefit you the employer, even meals out with clients.
According to the Global Business Travel Association, an estimated 1.3 million business trips occur each day in the United States. Workers take 488 million business trips annually in the United States. Do you think your exposure ends when they reach their destination? No, it does not. Your employees have to eat, take taxis, walk to meetings, and even go out to dinner with clients. They may even sight-see while in their travel destination. Should that be covered?
The Court of Appeals In Wisconsin said yes in the 1997 case of Richard Kamps vs CBS, Inc. This is the famous Lillehammer Olympics claim where Richard Kamps was hired to work as a runner by CBS, Inc., to cover the Winter Olympic Games in Norway. His employer even gave him a ski pass to use while doing his job. CBS gave him and his fellow crew a day off during the games to do whatever they wanted to do. The group decided to go downhill skiing, even though they remained on-call during this time.
Mr. Kamps fell and injured his knee. The insurance carrier for CBS denied his claim for workers compensation indicating that he had deviated from his employment under Wisconsin Statute 102.03(1) (f). Mr. Kamps appealed the denial to the Labor and Industry Review Commission who overturned the Administrative Law Judge’s opinion. They reasoned that Mr. Kamps was working in a location where skiing was a normal form of recreation. CBS had provided the transportation and the free ski lift passes. It was also upheld when challenged again by CBS, with the Wisconsin Court of Appeals.
Let’s look at Mr. Kamps in another scenario. Let’s say his sister lived in Norway and he was given the day off of work. He drives 200 miles to see her and is injured while hiking in the mountains. Is this a true deviation from his employment? I would say yes. He was not with his co-workers and this activity was solely personal to him. His employer did not furnish a vehicle for the travel. His employer would be correct in contesting any claim he would present for workers compensation benefits.
Moral of the story, you cannot expect your traveling employees to just stay in their hotel room when traveling on your behalf. Many times, claims can be denied for deviating from your normal job activities even when traveling. Many states assume the standard for traveling employees is that the employee does something outside of the scope of “reasonable and foreseeable” activity. But it may take a court to decide that for you and your employee.
Another famous Wisconsin case that was very controversial, yet found to be compensable, was the Heritage Mutual Insurance Co. v. Larsen, 2001 WI 30,242 Wis. 2d 47, 624 N.W. 2d 129. In this claim, an employee who was on a sales trip stopped at a tavern and had a few drinks, and made the decision to not return to his home, but to a mobile home he had in the area. He passed out before he could get into the trailer, in subzero weather. As a result, he sustained injuries that required amputation of several fingers. The Labor and Industry Review Commission of Wisconsin ruled in his favor that he was in the zone of special danger created by the sales trip while trying to enter his mobile home, and thus the injuries arose out of the employment.
These are just two examples of case law set by claims that were disputed by employers who thought these types of activities were deviations from employment and found not to be. It can be tricky for employers to fully know their exposures for traveling employees. Employers should be aware of the types of non-work related activities that can be a covered loss, and work closely with their workers compensation carrier and insurance consultants.