Expect Your Employees to Answer Their Cell Phones? Expect Workers’ Compensation Liability

October 14th, 2011 by JBWK

In a recent ruling from the Virginia Court of Appeals, where most workers’ compensation issues are finally decided, the Court held that an employee injured in a car accident after seeing her personal cell phone illuminate was entitled to workers’ compensation.

The employee, a home hospice care nurse, was driving home from a mandatory training session. She had an employer-provided pager; however, dues to its unreliability, she kept her personal cell phone on her and requested her family not to call it during the weekends she was on call. While driving, her phone illuminated in her pocket and distracted her, causing an accident.

The Court of Appeals held that she was entitled to workers’ compensation coverage, even though the call did not come from the employer. The fact that she reserved her personal cell phone for weekend on-call events was enough to make the accident “arise out of” her employment–a critical element of coverage.

Although it attempted to limit its holding to the specific, and perhaps unique, set of facts, the employer here became liable for its employee’s personal cell phone use while driving on her way home from work, an important warning if you expect your employees to be available at all times.


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