by Vincent A. Toreno, Esq.

Although the general rule is that an injury sustained while an employee is going to and from work does not arise out of and in the course of the employment, there is an exception to this rule, known as the “continuous employment doctrine.” This doctrine provides broader workers’ compensation coverage to an employee and a recent Georgia Court of Appeals case provided some guidance on its application. A continuous employee is one who is required to lodge and work near the employer’s job site so that the employee may be readily available to work. Such an employee is in effect in continuous employment, day and night, for purposes of workers’ compensation and the law considers activities performed for the health and comfort of the employee, including recreational activities, to arise out of and in the course of the employment.

In The Avrett Plumbing Company v. Castillo case, the employee worked a job in Augusta, Georgia but lived elsewhere. He was paid hourly to work Monday through Friday with occasional overtime on the weekends. His employer provided him with a hotel room where he lived during the week. The employer rented the hotel room on a weekly basis and gratuitously allowed the employee to stay over on the weekend if he chose to do so but this was not a requirement of employment. The employee chose to stay on weekends for his own personal convenience. One Sunday afternoon, while shopping for groceries, the employee tripped and broke his ankle. It was undisputed the employee was off work and was not on call or working overtime that weekend; however, he sought workers’ compensation benefits on the grounds that he was a continuous employee. Following a hearing, the Administrative Law Judge ruled in favor of the employee finding him to be a continuous employee even though he was not “on-call” because he was required by his employment to live away from home while working.

The Appellate Division of the State Board disagreed, finding that the employee was not a continuous employee. The Appellate Division noted the employee was not paid to work “on-call” during the weekend or for otherwise being near his place of employment while he was off work. Instead, the employee remained at the hotel over the weekend due to his own personal transportation and financial constraints. The case reached the Court of Appeals, which agreed with the Appellate Division that the employee was not serving any requirement of employment, nor was he under control of his employer or performing any employment related activity that weekend. Therefore, the continuous employment doctrine did not apply and the employee was denied benefits.

While the opinion is well reasoned, it included a sharp dissent that argued the continuous employment doctrine should apply under these facts. The dissent cited to other Georgia cases finding continuous employment applied on weekends when an employee was staying at an employer-provided hotel but not performing any work. Another cited case found continuous employment where the employee arrived at the employer-provided lodging earlier than required by the employer.

The law in Georgia on the continuous employment doctrine is not black and white and is very fact specific, but this case illustrates how unintended consequences can result from a seemingly innocuous gesture. Although this was a favorable outcome for the employer/insurer, by gratuitously allowing the employee to stay at the hotel over the weekend, a continuous employment situation may have unintentionally been created even though the employee clearly was not working weekends.