Yu Qin Zhu was hired as a home caretaker by the the California State Department of Social Services. The Department added Zhu to the registry of qualified workers. Zhu reviewed the registry of patients, contacted persons on the registry, and then interviewed her selections so that both parties could decide whether Zhu would work as their caretaker. The patients Zhu cared for set the schedule and told her what her duties were for each day.
Zhu worked in this capacity for the Department from 2003 through 2015. During this time, Zhu was paid by the Department every two weeks with one paycheck for all the work performed. She was not paid for transportation to, from, or in between locations.
On December 16, 2015, Zhu cared for a couple living in Monterey Park from approximately 8:30 a.m. to 11:30 a.m. Zhu was scheduled to care for a woman in Alhambra in the afternoon. While she was riding her bike from Monterey Park to the house in Alhambra, Zhu was involved in a bicycle-automobile collision.
Zhu’s claim was heard on the limited issues of employment and injury arising out of and in the course of the employment. The WCJ found Zhu’s injury compensable because her “transportation between the clients’ homes was a mandatory part of the employment.”
A majority of the Appeals Board rescinded the WCJ’s decision after granting reconsideration. They reasoned that Zhu, chose her own clients, work locations and hours, and merely used the Department to obtain client referrals. The means of transit were immaterial to the Department, and travel by bicycle was for Zhu’s own convenience and benefit.
The dissenting WCAB commissioner agreed with the WCJ and found “there was an implied requirement that [Zhu] furnish her own transportation to travel between disabled clients, care for whom is the responsibility of defendant.” The dissent found Zhu qualified for the “required vehicle exception” to the going and coming rule because the employer received a benefit from the employee’s provision of her own transportation between job sites.
The Court of Appeal reversed the WCAB and extended the application of the going and coming rule in the published case of Zhu v WCAB.
The going and coming rule applies to a “local commute enroute to fixed a place of business at fixed hours. (Hinojosa, 8 Cal.3d at p. 157.) “Thus, if the employee is commuting between his or her home and place of work at the time of day that is usual for the commute, the going and coming rule applies. Zhu was not commuting between home and the workplace at a fixed time for that commute when she was injured.”
However, the going and coming rule has in practice been invoked when the employee was in transit between points other than the home and workplace. In these cases the real issue is not whether the going and coming rule applies, but whether the transit is part of the employment or the employment relationship. Zhu’s transit was for the Department’s benefit and was impliedly requested by the Department.