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Accidents and injuries can happen any time of the year. The snow, sleet, and ice that arrive with Pennsylvania’s often harsh winters, however, make them more likely to occur. And when winter weather results in injuries to Pennsylvania employees, they may be eligible for workers’ compensation benefits. As temperatures drop this time of year, employers should be aware of the legal landscape surrounding weather related accidents and injuries.
For Pennsylvania employees to obtain workers’ compensation benefits, their injuries must be sustained in the “course and scope of employment.” Injuries are considered to have occurred in the course of employment in two distinct situations: (1) where the employee, whether on or off the employer’s premises, is injured while actually engaged in the furtherance of the employer’s business or affairs, or (2) where the employee although not actually engaged in the furtherance of the employer’s business or affairs (a) is on the premises occupied or under the control of the employer, or upon which the employer’s business or affairs are being carried on; (b) is required by the nature of his employment to be present on his employer’s premises; and (c) sustains injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon.[1]
Several questions arise when exploring the effects of winter weather on the “course and scope of employment” standard. The first relates to the meaning of the term “premises.” While a worksite may be indoors and therefore shielded from the elements, premises extend beyond the indoor workstation to areas an employee may pass through when getting to or from his or her workstation.[2] Snow and ice found in parking lots and on sidewalks and other pathways can cause compensable injuries, so that injuries resulting from slipping on ice in an employer parking lot or shoveling an employee’s car out of a snow-covered parking lot may be compensable.[3]
In addition to parking lots, premises “includes the reasonable means of ingress and egress from the worksite.”[4] That means, for example, that injuries occurring when an employee parks in an off-premises lot and, walking a direct route to the worksite, slips on an icy public pathway shortly before the beginning of her shift, resulting injuries may be considered to have taken place on the employer’s premises.[5]
Even if they occur off the employer’s “premises,” entirely, winter weather injuries may be compensable when the employee is “engaged in furtherance of the employer’s business or affairs,” or briefly disengaged for the purposes of “personal comfort.” For example, if an employee leaves the worksite for a short cigarette break and slips on ice, the resulting injuries can be deemed compensable.[6] On the other hand, if an employee leaves the worksite for an authorized lunch hour during which he or she is off the employer’s premises and therefore considered to be like any member of the public, injuries resulting from a fall on slippery ice may not compensable, as the employee may be deemed have left the “scope of employment.”[7]
Similarly, commuting to work, outside of the ingress and egress into the premises, is not in the “course and scope of employment.”[8] If an employee who drives to and from his or her regular workplace daily is in a car accident in a winter storm, resulting injuries are not compensable. Additionally, if an employee slips on ice in a parking lot on his or her way home from work, resulting injuries are not compensable if the lot is owned and operated by an entity other than the employer and the employer does not pay for the parking space.[9]
Exceptions are made when (1) the employee has no fixed place of work; (2) the employment contract includes transportation to and from work; (3) the employee is on special assignment for the employer; or (4) special circumstances are such that the employee was furthering the business of the employer. [10]
Employees with “no fixed place of work” are classified by Pennsylvania courts as “traveling employees.” They may include, among others to be determined on a case-by-case basis, employees whose jobs require travel, who do not work on the employer’s premises or who do not have a fixed workplace.[11] This exception applies to employees such as truck drivers,[12] road inspectors,[13] cable technicians,[14] and temporary employees who are placed by agencies at various work locations [15]
The second exception, where the employment contract includes transportation, only applies if travel allowances are directly related to the expense or distance of the employee's commute, and the employer provides or controls the means of transportation used.[16]
The “special assignment” exception requires that an employee must be furthering the employer’s objective while completing work that is different from the employee’s regular responsibilities. For example, an employee injured while driving on an icy road on his way to one of his employer’s offices other than his own to complete an assignment different from his regular work, at the employer’s direction, is entitled to compensation.[17]
Lastly, “special circumstances” are narrowly defined by Pennsylvania courts to include only those circumstances "in which the employee was engaged … by order of the employer, express or implied, and not simply for the convenience of the employee."[18] In specific cases, for example, an employee who was injured in a car accident while driving home to make a phone call at his employer’s direction was entitled to compensation for the injuries,[19] as was an employee who was injured while driving to his worksite when his employer asked him, outside of his working hours, to come to the worksite and fix a malfunctioning security system.[20]
While employers have no control over the road conditions and other dangers posed by winter weather, they should be aware of those risks they can mitigate as temperatures drop. Employer-controlled paths and parking lots should be maintained to avoid employee injuries, and where possible, requests for employees to travel in unsafe conditions should be minimized. Finally, if injuries occur when the employer and employee both have no control, like where an employee is without fault and is hit by another driving while in the course and scope of employment or falls on a sidewalk owned by another entity, employers should consider third party subrogation liens and the preservation of such liens.[21]
[1] WCAB (Slaugenhaupt) v. U.S. Steele Corp., 367 A.2d 271 (Pa. Cmwlth. 1977).
[2] Ace Wire Spring & Form Co. v. Workers’ Comp. Appeal Bd. (Walshesky), 93 A.3d 932 (Pa. Cmwlth. 2014).
[3] Carl v. WCAB (G.H. Delp Co.), 469 A.2d 347 (Pa. Cmwlth. 1984); Port Auth. of Allegheny County v. WCAB (D’Agostino), 444 A.2d 837 (Pa. Cmwlth. 1982).
[4] Weaver v. Sally, 258 A.3d 559, 569 (Pa. Cmwlth. 2021) (holding that an injury occurring after employee slipped on icy pathway between parking area and worksite, is compensable because it is considered part of the employers’ premises).
[5] Id.
[6] See, e.g., Henderson v. WP Ventures, Inc. (Workers' Comp. Appeal Bd.), 269 A.3d 1272 (Pa. Cmwlth. 2022),
[7] Beaver & Casey, Inc. v. WCAB (Soliday), 661A.2d 40 (Pa. Cmwlth. 1995).
[8] Mansfield Bros. Painting v. WCAB (German), 72 A.3d 842 (Pa. Cmwlth. 2013). 9 Ortt v. Workers' Compensation Appeal Board, 874 A.2d 1264 (Pa. Cmwlth. 2005)
[10] Peterson v. WCAB (PRN Nursing Agency), 597 A.2d 1116 (Pa. Cmwlth. 1991).
[11] Lenzner Coach Lines v. WCAB (Nymick), 632 A.2d 947 (Pa. Cmwlth. 1993).
[12] Roadway Express, Inc. v. Workmen’s Compensation Appeal Board (Seeley), 532 A.2d 1257 (Pa. Cmwlth. 1987), appeal denied, 519 Pa. 662, 546 A.2d 623 (1988)
[13] Township of Salem v. Workmen’s Compensation Appeal Board, 437 A.2d 496 (Pa. Cmwlth. 1981)
[14] Holler v. Workers’ Compensation Appeal Board (Tri Wire Engineering Solutions, Inc.), 104 A.3d 68, 71 (Pa. Cmwlth. 2014).
[15] Mackey v. Workers' Comp. Appeal Bd. (Maxim Healthcare Servs.), 989 A.2d 404, 409 (Pa. Cmwlth. 2010)
[16] Williams v. Workers' Comp. Appeal Bd. (Matco Elec. Co.), 721 A.2d 1140, 1144 (Pa. Cmwlth. 1998)
[17] Wells Fargo Co. v. Workers' Comp. Appeal Bd. (Pacheco), 764 A.2d 1147 (Pa. Cmwlth. 2000)
[18] Rybitski v. Lebowitz, 104 A.2d 161 (Pa. Super. 1954), Mackey v. Workers' Comp. Appeal Bd. (Maxim Healthcare Servs.), 989 A.2d 404, 410 (Pa. Cmwlth. 2010), Setley v. Workmen's Compensation Appeal Bd. (Kawecki Berylco Indus.), 451 A.2d 10 (Pa. Cmwlth. 1982).
[19] LoPresti v. Workers’ Compensation Appeal Board (Gulf Construction Co.), A.2d 1017, 1019 (Pa. Cmwlth. 1978).
[20] Lutheran Senior Services Management Co. v. Workers' Compensation Appeal Board (Miller), 154 A.3d 892 (Pa. Cmwlth. 2017).
[21] See 77 P.S. § 671 (Subrogation of employer to rights of employee against third persons; subrogation of employer or insurer to amount paid prior to award)
