In the test case involving an AirTran Airways pilot, the employee was based in Atlanta but commuted as an air passenger to his home in Kentucky, making 8 to 10 round trips per month. Under an arrangement common for airlines, AirTran made free or low-cost fares on other airlines available to commuting employees.
The AirTran Airways pilot was a passenger who was killed when the Comair flight he was on crashed while taking off.
In Fortney v. AirTran Airways, even though the pilot was a passenger who was not working, on a different airline at the time of the crash, the Kentucky Supreme Court ruled that his loss of life was a valid workers’ comp claim against AirTran Airways. This was true despite the fact that the employee was not being paid and was not considered on duty until he checked in at the Atlanta airport, and the airline was not paying for the flight.
The Kentucky Supreme Court ruled that these reciprocal travel arrangements benefitted the employer as well as the employee, and therefore were covered under workers’ comp. The claim was denied, awarded by the workers’ comp board, denied again by the appeals court and eventually awarded by the state supreme court.
Under Kentucky law, as in most states, employees are usually not entitled to workers’ comp for accidents that occur during the daily commute. Because these events occur while the employee is going to or coming from work, it is called the “going and coming” rule.
However, there is an exception when the commute provides benefit to the employer. For example, an employee who transports materials or supplies in a company truck to the first worksite of the day may be covered by workers’ comp, because his commute offers benefits to the employer. In this case, the benefit is having materials on the truck transported.
While the Kentucky Supreme Court ruling addressed only the airline case, Kentucky employers should be cautious about allowing employees to use employer-owned vehicles. Kentucky employers should also be aware that an injury during a business trip could well be covered under workers’ comp.
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