In response to a New Jersey Supreme Court decision finding that an employee who was injured while walking from a parking lot two blocks from the physical place of employment was not in the course of the employment, the NJ Legislature has proposed legislation that would deem “employment” to commence when the individual arrives at any parking area that an employer provides or designates as a parking area for use by an employee, regardless of its location.
In the case of Hersh v. County of Morris, 217 NJ 236 (2014), Hersh was a County of Morris employee, and was allowed to park in a certain lot with her County ID that was located about two blocks from the building in which she worked. Ms. Hersh sustained serious injuries when she was struck by a vehicle crossing a street while traversing from the parking lot to her place of employment. The Court held that her injuries were not sustained in the course and scope of her employment, but rather her claim was barred by the “coming and going” rule. The Court based its decision on essentially two long standing principles in Workers’ Compensation law. That is, the accident took place away from the premises of the employer, and that the employer did not exercise “control” over either the employee in directing her where to park, nor did they have any control over the parking lot itself where she was allowed to park.
This concept of control, and what is considered the employer’s premises, will be significantly expanded if Senate Bill S771, and its companion assembly Bill, A6195, becomes law. As of now, the Senate has passed S771, and the Assembly Labor Committee has recently voted out of committee the companion bill which is the next step before the bill goes before the full General Assembly for a vote.
This proposed amendment to the Workers’ Compensation statute says that “employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of the work period.” This would mean that any time an employer makes parking available to the employee in an area that is separate from the physical place of employment, regardless of whether it is entirely owned or maintained by the employer, can be held liable for workers’ compensation benefits for any injuries sustained when that individual is injured while traveling between the parking area and the place of employment. If enacted, an employer who does not wish to take on the risk of injury in areas that are well outside the control of the employer will either have to forgo from making any such parking arrangements away from the actual site of employment, or will need to take steps to ensure the safety of its employees between such remote parking areas, and the building in which the work is performed.
While it is noble for the legislature to consider laws for the protection of workers who are injured in the course and scope of their employment, one wonders whether it was the intent of the workers’ compensation statute to protect employees so far removed from the actual place of employment. In fact, the 1979 amendments to the Act and Section 36, specifically, were designed to limit the employers’ exposure to off premises injuries. This statutory change would simply undermine that effort in such cases. Workers’ Compensation was designed to create a no-fault system of benefits to workers who sustain injuries in the course and scope of employment so that they did not have to sue their employer to obtain such benefits as medical care and temporary disability benefits. Individuals who are injured while traversing between a remote parking lot that was simply made available to employees by their employer are certainly free to make a claim against any entity that may have caused the injury in the first place. If such injury was not caused by the negligence of any outside entity, it will now become the exclusive responsibility of the employer for which they may have had no way to control or ability to prevent from happening. The legislature should consider the potential costs of such legislation to the employer as it will likely further increase insurance premiums to cover the increased risk of injury.
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