When Winter Strikes: Navigating Virginia Workers’ Comp on Ice

Old Farmer’s Almanac predicts a colder-than-normal winter in Virginia this year, and while the opportunities for Virginians to dash merrily through fields of snow may be relatively few and far between (snowfall is predicted to be lower-than-average this year), icy streets, walkways, and parking lots are still a risk to be considered by both employers and employees.

Ice-Related Accidents on Public Roadways

While many employees now have the option of working remotely, driving to, from, and for work is still a necessity for much of the workforce. Consider an icy winter morning on which two Virginians are on their ways to work: one, a grocery store clerk who will clock-in once he arrives at the store; the other, a municipal employee driving a town-owned vehicle. If the drivers skid on a patch of black ice on their ways to work, will their resulting injuries be compensable under the Virginia Workers’ Compensation Act?

To prove a compensable work-related injury in Virginia, the claimant bears the burden of proving he suffered an injury by accident arising out of and in the course of his employment. As a general rule, an injury suffered while an employee is going to or coming from work is not compensable, as the employee is not “in the course of” his employment. However, there are three exceptions to this general rule: (1) where the means of transportation is provided by the employer, or the employee’s travel time is paid by the employer; (2) where the route taken is the sole and exclusive way of ingress and egress, or the way of ingress and egress is constructed by the employer; and (3) where the employee’s travel is necessary for him to perform some duty or task connected to his employment. If an employee can satisfy one of these three exceptions, any injuries he sustains while going to or coming from work will have occurred in the course of his employment. However, the “arising out of” element of compensability must also be established.

Under the “street risk doctrine,” an injury sustained in a motor vehicle accident is compensable if (1) the employee’s duties to his employer required his presence on the streets (i.e., the “in the course of” requirement); and (2) the employee’s injury arose from an actual risk of his presence on the streets (i.e., the “arising out of” requirement). Under the Virginia Workers’ Compensation Act, other accidents must be caused by a risk peculiar to the employment to be compensable, but a motor vehicle accident is compensable if any “risk of the street” caused the accident.  Therefore, it does not matter whether or not the employee was at a greater risk of being in an accident than other drivers on the same roadway. All that matters is that the employment subjected the employee to the hazards of the street. Injuries that result from those hazards of the street are considered to have arisen from the employment. However, although the street risk doctrine extends compensability to a variety of roadway hazards – other drivers, uneven road surfaces, animal crossing, ice, etc. – facts must exist to explain how the accident occurred. Without an explanation as to the cause of the accident, the employee cannot prove his injuries arose from an actual risk of his presence on the streets.

With respect to our two hypothetical drivers on their ways to work on a cold Virginia morning, one’s accident will be compensable, and the other’s will not. Assuming it can be established that both accidents were caused by ice on the roadway, both drivers will be able to prove their injuries arose from their employment. However, the grocery store clerk was not in the course of his employment at the time of his accident. He was on his way to work and was not subject to one of the three exceptions to the going and coming rule. Conversely, the municipal employee was in the course of his employment, as his means of transportation had been furnished by his employer. Absent any other applicable defenses, his claim will be compensable.

Injuries Resulting from Slips and Falls on Ice

While the Virginia DOT’s practice of salting and brining public roadways in advance of winter storms keeps most major streets clear of significant ice and snow, the same cannot always be said of private streets, parking lots, and walkways. These areas can pose risks to employees walking to/from their employer’s facility in the winter.

The going and coming rule is not exclusive to travel in motor vehicles. Employees walking to/from their places of employment are also considered to be outside of the course of their employment unless one of the three exceptions discussed above applies, though the second exception (where the route is the sole and exclusive way of ingress and egress, or the way of ingress and egress is constructed by the employer) is the most likely to apply to injuries sustained by pedestrians. Additionally, if the injury occurs in an area that is considered an “extension of the employer’s premises,” then the going and coming rule will not bar the claim. The Supreme Court of Virginia has explained that employment includes not only the actual performance of the work, but also “a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done.” Barnes v. Stokes, 233 Va. 249, 252, 355 S.E.2d 330, 331 (1987) (quoting Brown v. Reed, 209 Va. 562, 565, 165 S.E.2d 394, 397 (1969)). Therefore, if an employee is injured while traveling to or from work on a route that the employer expressly or implicitly allows – whether on the employer’s property or on a nearby property that functions as part of it – the injury is considered to have arisen out of and in the course of the employment.

The key consideration in determining if an area falls within the extended premises exception is whether the employer has control or authority over the area. The Virginia Courts have consistently held that simply being in a parking lot utilized by employees it not enough. However, where the employer did not own or maintain the parking lot, but it designated a specific area of a nearby parking lot for its employees to park and instructed employees to park in this area, the Court found the employer exerted sufficient control over the employee’s parking such that this area was considered an extension of the employer’s premises. Barnes at 252, 355 S.E.2d at 332.

In September of this year, the Court of Appeals of Virginia addressed the extended premises doctrine in denying compensation for an employee who slipped on ice heading into the hospital where she worked. In Poole v. Quest Diagnostics, 85 Va. App. 702, 919 S.E.2d 800 (2025), the employee, a phlebotomist, parked in a public garage near the hospital, exited her car and the deck, and was in a crosswalk when she slipped on ice and fell, fracturing her wrist. Poole, who was authorized to park in a handicap spot, argued that when she was hired by Quest less than a month prior to her injury, she was told to park in this specific parking deck, and she was heading towards the only entrance to the hospital at the time of her fall. Quest presented evidence that the parking deck was simply one option for employee parking, there were handicap spots outside of the parking deck, and there were multiple entrances to the hospital that employees could use for ingress/egress. The Court of Appeals found that Quest did not control where employees parked, and Poole was not required to park in a specific location, so the extended premises doctrine did not apply to the parking deck. The Court also addressed the applicability of the extended premises doctrine to the crosswalk between the parking deck and the hospital, noting that the analysis for passageways and walkways differs from the analysis for parking lots. Where a walkway is an essential means of ingress/egress from a public right-of-way to the employer’s place of business, the employer can be held liable for injuries occurring on the walkway. However, the Commission found that a crosswalk in a public street was not the equivalent of a walkway or passageway, and there was no evidence that the employer owned, controlled, or maintained the crosswalk. The Court of Appeals found no Virginia authority to the contrary, so it upheld the Commission’s finding that the crosswalk was not part of the extended premises. The Court affirmed the Commission’s denial of Poole’s claim for workers’ compensation benefits.

In preparing for possible icy weather, employers may consider the following in an effort to keep employees safe and avoid workers’ compensation claims:

• Employers should encourage employees to use caution when traveling to/from work in icy conditions.
• If practical, employers may offer a work-from-home option during inclement weather – especially if the employer is furnishing transportation to the employee or the employee travels as part of his job.
• Employers should consider the potential implications of requiring employees to park in a specific location if the employer does not own the premises on which employees will be parking.
• In selecting an office building or facility, employers should consider how employees will get from their cars and onto the employer’s premises – Are there multiple entrances? Would employees have to cross a busy street? Who maintains the parking area and the pathways employees will travel on?
• If feasible, employers should consider salting, brining, and/or plowing parking lots and walkways on and around its facilities.

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