The “going and coming rule” is a foundational doctrine in California workers’ compensation law, defining the boundary between compensable work-related injuries and non-compensable personal risks.
Under this rule, injuries sustained while an employee is commuting to or from work are generally not considered to arise out of and in the course of employment, and therefore are not compensable.
Despite its seemingly bright-line nature, the going and coming rule has evolved into a more nuanced doctrine due to a wide range of exceptions, where the employment relationship contributes to the risk of injury during travel. As a result, exceptions such as the “special risk,” “dual purpose,” and “employer-provided transportation” doctrines have developed to extend coverage where the employee’s commute is sufficiently connected to the employer’s business or exposes the employee to risks beyond those faced by the general public. These exceptions reflect the broader statutory mandate that California workers’ compensation laws be liberally construed in favor of coverage where appropriate.
In a recent case, Zenith Insurance Co. v. Workers’ Compensation Appeals Board (Hernandez) (2025) 110 Cal. App. 5th 1164, the California Court of Appeal narrowed the application of the “special risk” or “zone of danger” exception. This exception may apply when an employee is injured in close proximity to the workplace due to a hazard uniquely associated with the employment, such as a dangerous entrance to the employer’s property.
Hernandez, supra, concerned an employee who was severely injured while commuting home in a vanpool, which was arranged by a coworker rather than by the employer. The workers’ compensation judge found the injury compensable under the special risk exception, reasoning that the employer was aware that the employee did not have a driver’s license and would have to make special arrangements to get to work. The Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration; however the Appeals Court granted a petition for writ of review.
On appeal, the court held that the special risk exception did not apply because the injury occurred far from the employer’s premises and was not tied to any employment-controlled hazard.
Effectively, the court declined to apply the special risk exception to the entire commute. It also held that the dual purpose exception failed because the commute provided no incidental benefit to the employer in furtherance of an express or implied term or condition of the employment. The court further rejected the WCAB’s finding that the dual purpose rule applied because the manager was aware of the vanpool, and the employees arriving together allowed him to assign work duties all at once.
While this case is highly fact-specific, it does offer important clarification regarding the scope of the going and coming rule, and how far the special risk and dual purpose exceptions extend.
Chelsea M. Lalancette is an associate attorney at Bradford and Barthel’s Fresno office. If you have questions about workers’ compensation defense issues, please feel free to reach out to Chelsea at (559) 442-3602 or clalancette@bradfordbarthel.com.
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