Commuting accident

What is an in itinere accident?

Article 156 of the General Social Security Law defines a work-related accident as any bodily injury suffered by a worker as a result of or in connection with work performed for an employer, and section 2.a expressly includes accidents suffered by the worker while traveling to or from the workplace. The Latin expression “in itinere” (on the way) designates this type of accident, which extends occupational risk coverage to travel between the home and the workplace. For self-employed workers, Article 316.2 of the same law recognizes “in itinere” accidents for those covered by occupational risk coverage, subject to specific requirements.

The law does not specify the requirements, which have been defined by Supreme Court jurisprudence. The teleological element requires that the primary and direct purpose of the journey be work-related; the geographical element, that the accident occur on the usual and normal route between home and workplace, allowing for reasonable deviations; the chronological element, that it occur within a reasonable time close to the start or end of the workday, without interruptions that break the connection; and the element of suitability of the means, that the journey be made using a normal or usual means of transport, including one’s own. More recent legal scholarship interprets these elements with criteria adapted to social reality, for example, regarding the concept of home or the use of bicycles.

A commuting accident is distinct from a work-related accident, which occurs during travel undertaken on company orders during working hours (client visits, transfers between offices, business trips), and is considered an ordinary work-related accident with a presumption of being work-related. It is also distinct from a work-related traffic accident in general, which encompasses both commuting accidents and those involving drivers as their primary occupation.

Legal effects and particularities

• Occupational contingency. An accident in itinere generates the benefits of work accident (health care, temporary disability, permanent disability, death and survivor) with the bases and percentages specific to occupational contingencies, paid by the mutual collaborator or the INSS.
• Without presumption of work-relatedness. The presumption of article 156.3, which considers injuries suffered during working hours and at the workplace as work-related accidents, does not apply to commuting accidents; it is up to the worker to prove the elements that constitute it, except in cases accepted by jurisprudence.
• Illnesses. Case law generally excludes common illnesses manifested during the journey (for example, a heart attack) from the in itinere category, as the presumption of work-relatedness does not apply.
• Notification. It must be reported through the Delt@ system as a work accident when it results in sick leave, with the corresponding mark of in itinere, and it counts in the official accident statistics separately.
• Surcharge on benefits and liability. As it occurs outside the scope of the company’s control, it does not usually result in a surcharge on benefits or company liability, unless there is a breach of preventive obligations in the trips organized by the company.
• Investigation. Its investigation is not mandatory according to article 16.3 of Law 31/1995 in the same terms as the accident at the center, but its analysis provides valuable information for occupational road safety.

Prevention of commuting accidents

• Mobility and road safety plan. Analysis of staff commutes, schedules, modes of transport and risk points, with measures to improve access, parking, public transport and staggered schedules.
• Organization of working time. Reduction of fatigue and drowsiness during commutes, especially after night shifts or long days, and flexible hours to avoid time pressure.
• Information and training. Road safety campaigns, seat belt and helmet use, mobile phone distractions, alcohol and drugs, driving in adverse weather conditions and vehicle maintenance.
• Active and safe mobility. Promotion of public transport, cycling and walking with adequate infrastructure and facilities.
• Indicators. Recording and analysis of commuting accidents, with and without lost time, to guide the mobility plan.

Organizational application: how to manage commuting accidents

1. Establish an internal communication procedure for any accident on the journey, with and without loss of income, with the necessary data to assess the elements that constitute it.
2. Process the work accident report through Delt@ within the established deadlines when the employee is on leave, identifying it as an in itinere accident, and coordinate the assistance and classification with the mutual insurance company.
3. Record the accident in the management system with information on route, time, means of transport and causes, and analyze it even if a formal investigation is not mandatory.
4. Integrate the data into the accident rate indicators in a way that is different from accidents during working hours.
5. Develop and update a mobility and road safety plan with organizational, infrastructure and training measures.
6. Coordinate with the prevention service regarding fatigue management and shifts, and with human resources regarding flexible working hours.
7. Inform the staff about what an in itinere accident is, how to report it and what rights it generates.

Preventive management software allows you to record commuting accidents with their circumstances, differentiate them in the indicators, manage the notification documentation and monitor the mobility plan.

Limits and common mistakes

1. To consider any accident outside the workplace as an “in itinere” accident, or to confuse it with an accident on assignment.
2. Failure to report the accident to the mutual insurance company or to process the report, depriving the person of the benefits of the occupational contingency.
3. Assuming that the presumption of employment covers the in itinere and omitting the collection of data that prove its elements.
4. Excluding commuting accidents from the indicators and analysis results in a loss of information for road safety.
5. Not addressing fatigue after night shifts or long working days as a risk factor in commuting.
6. Lack of a mobility and road safety plan in companies with significant travel.

The classification of an accident as in itinere corresponds to the mutual insurance company, the INSS and, where appropriate, the courts; this sheet is for informational purposes.

Regulatory framework in Spain

• Royal Legislative Decree 8/2015, General Social Security Law, articles 156 and 316. Concept of work accident, inclusion of the in itinere accident and regulation for self-employed workers.
• Law 31/1995, articles 14, 16 and 23. Duty of protection, investigation of damage to health and documentation.
• Order TAS/2926/2002, of November 19. Models of work accident report and Delt@ notification system.
• Royal Legislative Decree 6/2015, of October 30. Consolidated text of the Law on Traffic, Motor Vehicle Circulation and Road Safety.
• ISO 39001. Road traffic safety management systems, applicable to work-related travel.

The treatment of commuting accidents varies between countries: in Colombia, Decree 1295 of 1994 and Law 1562 of 2012 recognize it when the transport is provided by the employer; in Chile, Law 16.744 includes it as a journey accident.