Private employers' workers' compensation liability for on-call employees.

• Author: Moss, Laurie S.
• Position: Florida

Many private employers have employees who are "on call," either at scheduled times or on a continuous basis. In fact, one may argue that with the invention of beepers and cell phones, most employees are "on call," even if not so designated.

This article provides a brief overview of the laws that address a private employer's liability under the workers' compensation laws for its on-call employees, (1) and those employees who reside on the company premises but who are not on duty at all times. (2) This article does not address issues of compensation of such employees under federal and state laws. (3) For purposes of this article, on-call employees are those employees subject to the sudden call of the employer to respond to a situation that requires the employee to report to work or perform work on behalf of the employer.

Workers' Compensation in General

Under F.S. Ch. 440, which addresses an employer's workers' compensation liability, the liability of an employer to an injured, on-duty employee is generally limited. Workers' compensation laws were designed to require an employer to compensate an employee for on-the-job injuries regardless of fault. In exchange, an employer's liability is generally limited to the remedies set forth in Ch. 440. (4)

Under Florida law, an employer however is generally not liable under workers' compensation laws to an employee who suffers injury (5) when the employee is operating outside the scope of his employment. F.S. [section] 440.92 sets forth five specific situations in which an employer will not generally be liable to an employee injured in job "associated" activities, but which occur while the employee is not "on the job." These situations include recreational and social activities, (6) coming or going to work, (7) deviation from employment, (8) traveling employees, (9) and subsequent intervening accidents. (10) While Ch. 440 contains other exclusions and exemptions, this section is discussed because it is most applicable to the issue of whether an on-call employee is entitled to workers' compensation benefits in a given situation.

Because the workers' compensation statutes do not directly address private on-call employees, nor employees residing on the premises of an employer who are on call at all times or even designated times, this article sets forth the arguments that can be made both for and against coverage for the on-call employee. While the on-call employee and residential employee are generally two separate issues, with respect to whether workers' compensation coverage applies in a given situation requires a discussion of both, as there is some overlap in the case law.

On-call Status

Simply being "on call" does not make an employer liable to its employee under workers' compensation laws, (11) when the employee is not engaged in the business of the employer. And while public employees such as police officers and other emergency personnel are generally considered to be on duty at all times, (12) thus creating a broad exception for certain public employees, there is no on-call exception rule in Florida for private employees.

Even a private employee who is subject to call at all times is not necessarily considered "on duty" at all times; (13) nor does the single circumstance of irregular hours justify entitlement to workers' compensation. The case law which addresses this issue, generally deals with the special requirements set forth in [section] 440.092.

As stated above, [section] 440.092(1) addresses an on-call employee who is injured while engaged in recreational or social activities. Such injuries which occur as an incident to employment and not directly beneficial to the employer do not entitle an employee to compensation unless the injury...