Know what your workers’ comp responsibilities are

When does the right to unemployment benefits arise? This was the question raised in a case where a restaurant was transporting workers from Mexico to Louisiana.

Beaucoup Crawfish of Eunice, La., annually contacted potential workers to assess their interest in temporary employment and helped those interested to begin the process to obtain an H-2B visa. Applicants were directed to go to a U.S. consulate in Mexico to obtain the required documentation. If the visa was obtained, the worker would travel to Eunice and complete the application process there. The restaurant regularly hired a bus service to transport would-be workers to the consulate and then from Mexico to Eunice. 

A bus carrying numerous applicants was en route to the U.S. consulate in Monterrey, Mexico, to obtain visas and then travel to Beaucoup. Before reaching the consulate, the bus was in an accident, causing injuries to three of the would-be employees.

The three filed workers’ compensation claims. For entitlement to those benefits, an employee must, per the words of the relevant statute, be injured “in the course and scope of employment.” Beaucoup denied liability, claiming the three plaintiffs had not yet completed the hiring process and thus, their injuries occurred outside “the course and scope of employment.” The workers’ comp judge agreed and dismissed plaintiffs’ claims. Plaintiffs appealed. 

Unfortunately for the prospective workers, there’s a generally applicable rule for injuries incurred by employees while traveling to and from work. The “going-and-coming rule” holds that injuries sustained while traveling to and from work are not covered. The rule is based on the premise that the employment relationship is suspended from the time employees depart from work and until they return to work.

Here, the accident occurred prior to plaintiffs obtaining an H-2B visa, without which they could not be employed in the U.S. Further, none of the plaintiffs had reached Beaucoup’s facility, which was the jobsite, and no wages were paid to plaintiffs prior to the injury. Based on these facts, the court upheld the dismissal of plaintiff’s claims.

The lesson: Strive always to ensure as safe a worksite as possible. But injuries incurred by workers coming to and leaving work are generally not the employer’s responsibility. 

Karen Morris is a lawyer, municipal judge and professor at Monroe Community College in Rochester, N.Y.