The “going and coming” rule is based on the traditional distinction between a “workplace” owned by the employer, where all work activities occur during a defined period or “shift,” and the worker’s “home,” where little or no work activity occurs. That distinction has become blurred for many workers by the trend toward work-related mobile communication devices, such as laptop computers and cell phones. Such devices allow (or in some employments require) workers to take their “workplaces” with them, not only on the journey home, but also into their homes, and perhaps even on vacations or other personal outings. (“Home injuries” will be addressed later in this outline.)
Arguably, this trend expands the “in the course of” element from the traditionally defined “workplace” to, potentially, any place in the world where the worker is actually engaging in work activities. This element could perhaps even be deemed minimally satisfied simply by carrying a communication device for purposes of being available for work-related communication. In addition, “off-site” work activities through such devices may occur sporadically rather than at set times, thus leading to scenarios where a worker may be briefly and repeatedly jumping into and then out of the course of employment.
On the “arising out of” element, the carrying or use of a mobile communication device for work-related purposes also would have to play some causal role in the injury. The most obvious scenario for such a role would be when the worker’s use of the device causes the worker to become distracted, leading to a trip and fall or perhaps a motor vehicle accident. But other, less obvious scenarios could occur as well, such as trying to retrieve a device that has been dropped or searching for a device that has been misplaced.
Carrying an employer—provided cell phone was cited by the Court of Appeals in City of Eugene v. McDermed, 250 Or App 572, 582 (2012), rev den, 353 Or 208 (2013), as a factor in concluding that the worker, a police officer, remained within the course and scope of employment while walking across the street from the police station to buy a cup of coffee. Given the worker’s role as a police officer and the employer’s ability to contact the worker via the cell phone, the court concluded that the worker was “still on duty” during the brief trip, and thus that the going and coming rule was “inapposite” in that case.
Another potentially instructive case in this area is SAIF v. Massari, 291 Or App 349 (2018). There, the worker, a physician employed by a clinic in Bend, was injured when he slipped in the icy parking lot of a hospital where he often worked. SAIF denied the claim under the “going and coming rule” on the theory that, at the time of the injury, the worker had not yet begun his work activity at the hospital and thus was not within the course of his employment.
The court affirmed the board’s order based on the conclusion that the worker’s “shift” had begun before his injury. The court noted that the worker had a home office, which was equipped with an employer-provided computer that allowed him access to medical records and research tools. The court also noted that, while still at home, the worker had turned on his pager at 7 am, the beginning time for his shift. Thereafter, the worker became responsible to respond to any incoming page within 10 or 15 minutes. Although the worker had not worked in his home office or received any page on the morning of his injury, the court concluded that the employer’s right to direct and control the worker’s activities after his shift began at 7 am. was sufficient to bring the worker within the course of his employment before he left home for the hospital. Accordingly, the court held that the “going and coming” rule did not apply to the worker’s injury in the hospital parking lot.
No other cases appear to have directly addressed the issue of the compensability of an injury associated with the use of a work cell phone or other electronic device while traveling to work or not otherwise on duty. The closest case appears to be Halsey Shedd RFPD v. Leonard, 180 Or App 332, 44 P3d 610 (2002). There a volunteer firefighter on “stand—by duty” turned his ankle and fell in his driveway at home after his work pager went off. However, the court emphasized testimony by the worker that the pager played no causal role in the fall. Id. at 335. The court concluded that the worker in that case failed to satisfy the “arising out of” element, and thus that the claim was not compensable. Id. at 341. Had the pager played a causal role in the fall, the result may have been different.