OSHA LOI: Accident during additional commute could be recordable

By: Travis Rhoden

Publication: Workplace Safety Regulatory Alert

Date Posted: 04/12/2022

What about employee pay during the commute?

As part of his normal workday, Jason commutes in his personal vehicle from his home to the workplace. At the end of his 8-hour work-shift, Jason commutes from the workplace back to his home. Later that same day, there is an emergency at the workplace, and Jason’s supervisor calls him to return to work to assist with resolving the emergency. Jason starts driving back to the workplace but is involved in a motor vehicle accident with another car. The accident results in Jason sustaining an injury and hospitalization.

Is Jason’s injury resulting from the accident during the second trip back to the workplace a recordable injury?

According to a recent OSHA Letter of Interpretation, yes. Since Jason was required to return to the workplace outside of his normal commute, he was engaged in a work activity “in the interest of the employer,” and was traveling as a “condition of employment.” Accordingly, the resulting injury and hospitalization is work-related and must be recorded on the OSHA 300 log.

OSHA’s longstanding position is that injuries and illnesses that occur during an employee’s normal commute from home to work, and from work to home, are not work-related and therefore not recordable. When an employee is traveling during their normal commute between home and work, that employee is not in the work environment, nor is that employee performing a work activity in the interest of the employer.

Instead, the employee’s normal commute to and from work represents a non-work-related activity that is within the personal control of the employee. The employee’s normal commute from home to work ends once the employee arrives at the work environment or starts traveling “in the interest of the employer.”

Jason’s additional trip to the workplace was not his normal commute.

Let’s throw another wrench into the situation. Does Jason need to be paid for any of these commutes — normal or additional?

Jason generally need not be paid for his normal commute under the provisions of the federal Fair Labor Standards Act (FLSA). An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.

Travel that is outside of the ordinary as illustrated in Jason’s situation, however, is not specifically addressed by the FLSA.

Most likely this commute is 30 minutes or less, so it might be cheaper for the employer to pay for that amount of time than having to defend itself in court for an FLSA violation. If Jason was mad about getting called in (and any other work issues going on), anger could incite him to file a DOL complaint.

Once the DOL starts poking around, they can uncover all kinds of issues: Wage violations, poster violations, recordkeeping issues, etc. So, one mistake could land the employer in a heap of expensive trouble.

Key to remember: Injuries suffered during travel outside an employee’s ordinary commute are recordable, and the time spent during such travel is compensable.