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Don’t Slip Up

Know the Law for Employee Slips and Falls in Parking Lots and Surrounding Areas

December 4, 2020

With winter just around the corner, it won’t be long before many areas start seeing snow in the forecast. Businesses will soon be scrambling to clear their parking lots to ensure the safety of their customers and employees. While businesses fear the potential liability attached to a slip-and-fall injury sustained by a customer, some may be unaware of the type of liability they face if an employee takes a tumble. Read on for guidance on the type of liability attached to injuries sustained by employees in parking lots and related areas.

Wisconsin Worker’s Compensation Act

The Wisconsin Worker’s Compensation Act (the “Act”) provides benefits to employees who sustain a work-related injury. To be compensable under the Act, the injury must, among other things, occur in the “course of employment,” which refers to the time, place, and circumstances under which it occurs. An employee who is clocked in at work and performing work when an injury is sustained typically is in the course of employment. Under the “coming and going rule,” however, employees generally are not in the course of employment while going to or coming from work. Stated otherwise, the Act generally doesn’t cover injuries sustained “off the clock,” while the employee is not at work and not performing work.

Exception for Parking Lots

There are several exceptions to the general rule. One is for injuries occurring in an employer-designated parking lot. Specifically, an injury sustained while an employee is going to or from her employment “in the ordinary and usual way” and while on the employer’s premises is compensable. “Employment premises” include employer-designated parking lots and areas controlled, but not necessarily owned, by the employer.

As noted, an employee must be traveling in “the ordinary and usual way” before the injuries sustained in the parking lot will be covered under the Act. Even a slight deviation from the ordinary and usual way will take the injury outside of the Act’s protection.

For example, the Wisconsin Supreme Court has found an employee wasn’t leaving work in the “ordinary and usual way” when she walked past her car’s driver door to show a coworker a doll located in the trunk of her car. The employee argued her deviation from the ordinary and usual way was so momentary and insubstantial that it didn’t interrupt what would otherwise be considered leaving her employment in the ordinary and usual way. The court disagreed, noting her conduct was a deviation, regardless of how momentary or minor it was. Thus, the injury wasn’t compensable under the Act.

Exception for Areas Between Parking Lots and Employers’ Premises

Employers also may be liable under the Act for injuries their employees sustain in areas between the parking lot and the work premises—even if they don’t own or have any control over the area. Specifically, the Act has been amended to carve out an exception for areas between the employer’s designated parking lot and its work premises, so long as an employee is on a “direct route” and traveling “in the ordinary and usual way.” For example, an injury sustained on a sidewalk or public street located between the employer’s parking lot and its premises is covered under the Act so long as the employee is taking a direct route and traveling in the ordinary and usual way.

This exception has been narrowly construed by the courts. In one case, the Wisconsin Supreme Court denied benefits to an employee who was attacked on a public sidewalk between the employer’s parking lot and its building because he had taken a bus to work rather than making use of the employer’s lot. Specifically, the employee took a city bus to work for his 2:00 a.m. shift and was walking to the facility when he was attacked on a public sidewalk, approximately 50 feet from the employer’s entrance. The location where the attack occurred was an area where an employee, making use of the employer’s parking lot, would have traveled through to get to the employer’s premises. The court held the statute afforded protection only to an employee going to or from the parking lot to the employer’s premises. Since the employee had been traveling from the bus stop to the employer’s premises, he wasn’t exempt from coming-and-going rule’s typical restrictions.

No-fault System

Significantly, the workers’ compensation process is a “no-fault” system. As a result, an employee can’t be denied benefits because she failed to follow a safety rule or was somehow at fault. By the same token, she can’t claim punitive (or pain and suffering) damages if the employer was somehow at fault.

Employees and employers can claim a 15 percent increase or decrease in benefits, however, if they can show a safety violation (by either party) was a substantial factor in the employee’s injury. As a result, details about the parking lot’s condition or the manner in which the employee was traveling may be significant in a workers’ compensation claim.

Working From Home Application

The compensability of an injury that occurs while an employee is working from home presents its own unique challenges. Consider, for example, an employee who slips and falls in her driveway while going to check the mail in the middle of the workday. Would the injury be covered under the Act? What if she often receives work-related mail and was walking to the mailbox in anticipation of a work package? Would the injury be covered under the Act?

Unfortunately, there are no clear answers to the questions because the Act and case law interpreting it haven’t yet caught up to the work-from-home era. Generally, an employee who is permitted to work from home, and injured while doing so, is compensated in the same way she would be if the injury had occurred on the employer’s premises. Accordingly, if an employee is going to check the mail during work hours and for a work-related package, it would seem that a slip and fall in her driveway would be covered under the Act. It’s unclear, however, whether checking the mail for a personal package would be a deviation that would take the employee outside of the course of employment. The law in this area will likely develop as work from home becomes more prevalent.

Bottom Line

While injuries sustained by employees in parking lots and related areas can be compensable, the situations are very fact-intensive. It’s imperative you ask detailed questions about how, where, and when the injury occurred, as well as what the employee was doing when it happened. The details are especially important in work-from-home situations, which may have no witnesses.

Lastly, while workers’ compensation is a “no-fault” system, it’s still important to take reasonable steps to keep your parking lots cleared to mitigate the risk of falls and avoid penalty claims.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.