In Maryland, operation of the Going & Coming Rule precludes workers’ compensation for employees who are injured while traveling to and from work. The rationale for this rule is that employees ordinarily do not further their employer’s interests during their commute, nor do they face any greater risk of harm than other members of society who also use public roadways, sidewalks, etc. However, there are four recognized exceptions to the Going & Coming Rule.
The free transportation exception applies where the employer provides free transportation to and from work for its employees. In such a scenario, the employee is considered “on duty” during the commute, and any injury sustained during this time will be deemed to have arisen out of and in the course of employment. Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44 (1993) (citing Tavel v. Bechtel Corp., 242 Md. 299 (1966); Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350 (1955)). Similarly, the Going & Coming Rule does not apply where an employee is required to bring their personal vehicle for use during the workday. Alitalia, 329 Md. at 46-47 (“[T]he requirement that an employee furnish his own transport is analogous to the situation in which the employer provides an employee with transport to and from work, for which an exception to the going and coming rule already exists.”).
The special mission or errand exception applies where an employee is injured during their commute but while running an errand on behalf of his or her employer. Alitalia, 329 Md. at 44 (citing Reisinger-Siehler Co. v. Perry, 165 Md. 191, 199 (1933)). For example, if an employer asks an employee to pick up office supplies on their way to work and the employee is injured, the injury may be deemed compensable under the special errand exception. See also Montgomery County v. Wade, 345 Md. 1 (1997) (applying special mission exception where police department encouraged officers to utilize their squad cars while off-duty in order to increase police presence in the community).
The premises exception “applies when an employee suffers injuries away from the place of employment but on a separate area maintained by the employer for the employees.” Board of County Com’rs for Frederick County v. Vache, 349 Md. 526, 537-38 (1998) (emphasis added). The premises exception also applies where an employee is injured while traveling along or crossing a public roadway between two employer-maintained premises. Id. at 538 (“Thus, when an employee is injured traveling between a parking lot maintained by the employer for use by that employee to the place of employment, the injuries are compensable under workers’ compensation.”) (emphasis added).
The fourth and final exception to the Going & Coming Rule is referred to as the proximity or special hazard exception. This exception has two prongs that must be satisfied to prevent operation of the Rule:
The first component is “the presence of a special hazard at the particular off-premises point.” The second component “is the close association of the access route with the premises.” With regard to the first component, we have described this special hazard as a “peculiar and abnormal exposure to a common peril beyond that to which the general public was subjected.” Furthermore, the “gravamen of the rule” is not that the employee was near her workplace, but by virtue of her proximity to her workplace she was exposed to a danger peculiarly or to an abnormal degree greater than the degree to which the general public is exposed.
Vache, 349 Md. at 538-39 (internal citations omitted) (quoting Wiley Mfg. Co. v. Wilson, 280 Md. 200, 208, 215 (1977)).
The hallmark case with respect to the proximity exception is Wiley Mfg. Co. v. Wilson, supra, where the Court of Appeals of Maryland distinguished past case law and applied the exception to the case at bar. The two Claimants in the case had been injured on a railroad track while taking a “shortcut” from their place of employment to a parking lot after “punching out” for the day. The railroad tracks where the injury occurred was not part of the employer’s property.
The Court first explained that the Going & Coming Rule tentatively applied because the employees were off-the-clock and on their way home. However, the Court further opined that operation of the Rule was barred because the two prongs of the proximity exception were satisfied. In short, the two employees incurred compensable injuries because the railroad constituted a special hazard that was in close proximity to the place of employment, particularly because it was known by the employer that employees “traveled the same route regularly and customarily” for years (i.e. the “shortcut” was sufficiently associated with the access route to and from the employer’s premises).
In contrast to Wiley is the 1997 decision of Board of County Com’rs for Frederick County v. Vache, supra. In Vache, the Court of Appeals of Maryland held that the proximity exception was inapplicable and, as such, compensation was prohibited pursuant to the Going & Coming Rule. Specifically, the Claimant was injured after slipping on ice on a public sidewalk while walking to her place of employment from a private parking lot. The Court opined:
Slippery ice and snow were present everywhere in that region on that day. The public at large, including [the Claimant], was exposed to those conditions . . . . Further, [the Claimant] presented no evidence at either the Commission hearing or trial that the sidewalk was peculiarly or to an abnormal degree more dangerous to Frederick County employees . . . than to anyone else in the general public.
Additionally, [unlike Wiley,] there was no indication that the employer directed or even knew that appellee or other employees parked in the [particular] lot . . . . Accordingly, although the conditions on the . . . sidewalk were hazardous, we do not believe those conditions were a special hazard as contemplated by the proximity exception.
We hold that adverse weather conditions present throughout an area generally do not constitute a special hazard because the conditions created by adverse weather are not a special peril to which employees walking on public sidewalks are peculiarly or abnormally exposed . . . . Therefore, because the icy sidewalk was not a special hazard, the proximity exception does not apply under the facts of this case.
Vache, 349 Md. at 539-540. See also Pariser Bakery v. Koontz, 239 Md. 586 (1965) (holding that the proximity exception did not apply where an employee was struck by an out-of-control car on a public sidewalk outside of his place of employment); Salomon v. Springfield State Hospital, 250 Md. 150, 154 (1967) (“We have held in the past that traveling upon and crossing busy streets and highways, while it does entail some degree of danger, does not subject an employee traveling to and from work, to a greater degree of danger than he would be exposed to as a member of the general public.”).
