NEW WALMART EMPLOYEE DELIVERY PROGRAM EXPANDS WORKERS’ COMPENSATION LIABILITY
By Attorney Dennis Kurth
Snow, Carpio & Weekley
According to the Washington Post, Walmart is thinking of using its fixed-site employees to deliver packages to customers on their way home after work. The program, being tested in a couple of states presently, is a new tactic in its battle with Amazon for retail dominance.
The program is voluntary but Walmart intends to pay such employees extra, even overtime pay if necessary. Walmart sees the program as a way to cut costs as local delivery is the most expensive part of the fulfillment process. Walmart needs to reassess this program with its risk management people. Although it reflects the rise of the “Uber-style gig economy”, according to the Post, it also creates additional workers’ compensation liability for the company if the delivery results in an accident and injury to the employee making the delivery and especially if it causes an injury to an innocent third-party.
Workers’ compensation-covered injuries must “arise out of” and “in the course and scope of” employment under any states’ statute. The workers’ compensation law was never intended to cover injuries going to or coming from work. Until an employee arrives at work or home, his/her risk of injury while traveling to or from work is the same as the general publics’.
There are some well-known exceptions to the “going and coming” rule. One statutory exception in Arizona is for police officers and firefighters. They are covered for workers’ compensation if injured or killed while traveling directly to or from work as long as they are not engaged in criminal activity.
Other exceptions to the going and coming rule have been made by case law and provide workers’ compensation coverage for travel-related injuries where the employer pays for the employee’s transportation or provides a company vehicle. An injury to an employee driving an employer-provided conveyance would clearly be covered even if incurred on the way to or from work. Also, injuries to local traveling employees using their own vehicles would be covered except when they deviate from the scope of employment by making a personal side trip.
Dual Purpose and Special Errands
Another category of exceptions to the going and coming rule is for employees hurt on “dual-purpose” trips or “special errands” for the employer while on their way to or from work. Coverage for such injures would pertain if the “special errand” was necessary for the employer as opposed to simply elective or convenient. In other words, the delivery employee would be covered by workers’ compensation insurance only if the delivery/errand was important enough to the employer to require some other employee to do it had the volunteer not.
Walmart’s plan would seem to fit the “special errand” requirements since such deliveries by the “volunteers” would seem to be necessary one way or the other. By paying the volunteer employee for making these after-hour deliveries, however, Walmart is adding another going and coming rule exception to the mix which surely makes them liable for workers’ compensation coverage for any delivery-related injury to the employee.
Before Walmart’s executives get credit for devising a new way to save costs on their deliveries, there should be some serious consideration of the significant increase in workers’ compensation liability that this delivery program may entail. Unless they plan to give extra driver training and screening to their participating employees, it might be a good idea to put this program on hold. Not only could the employee be injured seriously in an accident on the road but a negligent delivery could cause an accident to another party that would subject the company to significant civil liability not circumscribed by workers’ compensation limits.