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by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the April/May 1998 issue of the Journal

Question: In the next few weeks I am planning to travel with my staff to a continuing dental education seminar. I am paying travel costs, hotel costs and continuing education course tuition for my staff of four plus myself. Where does my liability begin and end? Am I responsible for my staff after class hours? Am I liable for my staff if they choose to take a vacation day and stay at the hotel after the CDE course has concluded?

Answer: My answer to this question falls within two areas — liability to injured employees — worker's compensation, and liability for the acts of employees — vicarious liability.

Liability to injured employees — worker's compensation

Under Michigan worker's compensation law, an employer may be liable to its employees for injuries they sustain while attending seminars. The test for whether an employee is entitled to worker's compensation for an injury depends upon whether the injury "arose out of and in the course of" his or her employment. Michigan courts often struggle when deciding whether the cause of an employee's injuries is sufficiently related to the employee's job to merit worker's compensation. In the context of employees traveling to seminars or conventions, however, the courts have provided general rules which help determine whether the connection between an employee's injury and his or her employment is close enough to warrant compensation.

Generally, an employee's injuries occurring while attending a seminar will be compensable if the employer:

  • Arranges and pays for transportation or other expenses;
  • Requires or expects attendance;
  • Derives some specific benefit from the employee's attendance; or
  • If the employee's contract of employment contemplated attendance at seminars as a part of his or her job description.

Nevertheless, some employee conduct while attending a seminar may be so outrageous or unrelated to the business purposes of the trip that any injury sustained because of this conduct will not be covered by worker's compensation. For instance, if an employee is injured while attending a seminar, but at the time of the injury the employee is engaged in activity that is predominantly social or recreational in nature, the employee cannot recover worker's compensation. Additionally, courts often consider the amount of time that has elapsed between the end of the seminar and the injury, the amount of risk added by the employee's personal activities (such as drinking), and the nature of the job when deciding whether an employee has deviated so far from the business purposes of a trip that the "employment nexus" has been broken.

In this case, the dentist's employees would generally be covered by worker's compensation if they are injured while attending the continuing dental education seminar. Attendance at the seminar is probably required or at least expected, and transportation and other expenses are being paid for by the employer. This does not mean, however, that the employer will be liable in every case involving an injury to an employee during the seminar. If the employees are injured while engaging in predominantly social or recreational activities unrelated to the business purposes of the seminar, they are not entitled to compensation. Also, if the employees' behavior substantially increases their risk of sustaining an injury (for example, by drinking excessively), they may be barred from recovery. Finally, if an employee stays for a substantial period of time after the seminar has ended, any relationship to the business purposes of the trip will be severed, precluding compensation. In any event, the facts and circumstances will determine whether the injury is compensable under Michigan worker's compensation law.

Liability for the acts of employees  vicarious liability

A dentist employer may be liable for injuries to third parties caused by the acts of his or her employees. Under the doctrine of respondeat superior, an employer is vicariously liable for the acts of an employee committed within the scope of employment. Generally, an employer will only be vicariously liable for injuries resulting from the negligent or careless acts of its employees. If an employee willfully or intentionally causes injury to another person, an employer will typically not be held vicariously liable.

While the negligent employee who causes an injury to another may be personally liable for his or her acts, to hold an employer liable for those acts requires the existence of an employer-employee relationship. This determination turns upon the right of the employer to control the actions of the employee. When the person causing the injury is an independent contractor not subject to the employer's control, the employer will not be vicariously liable for the injury. In this case, the dentist's staff is probably subject to his or her direction and control, creating the employer-employee relationship necessary to establish a claim of vicarious liability.

Even if an employer-employee relationship exists, an employer is only liable to third parties when, at the time of the injury, the employee was acting within the scope of employment. The phrase "in the scope of employment" generally connotes those acts committed while the employee is engaged in the service of the employer. Under this standard, acts not reasonably connected to the nature, character, or purpose of the employer's business, or acts not related to the duties entrusted to the employee, will not render the employer vicariously liable. Thus, acts done outside of working hours, acts not connected with the employment, and acts not directed by the employer are not ordinarily considered to be within the scope of employment.

Generally, injuries to third parties caused by an employee during the employee's journey to a CDE seminar, when the employee's attendance is at the direction of and paid for by the employer, would fall within the scope of employment. Similarly, actual attendance at CDE lectures is so closely related to the business of dentistry that any injury caused by an employee while attending a lecture would presumably subject an employer to vicarious liability. If attendance at any CDE event is mandated by the employer, or is related to the fulfillment of one of the employee's duties, vicarious liability would also apply. Moreover, a finding that attendance at an event benefits the employer in some tangible way will support the conclusion that the employer is liable for the acts of its employee.

Conversely, an employee who voluntarily attends a purely social event while at a seminar, or who becomes overly intoxicated and causes an injury to a third person, would normally not be acting within the scope of employment. Such actions are not in the employer's interests, are unrelated to the employee's duties, and provide no benefit to the employer. An injury to third persons by an employee while on vacation after the seminar has concluded would constitute acts performed outside of working hours and unconnected with the employer's business, absolving the employer of any vicarious liability. The facts and circumstances surrounding any injury to third parties by an employee will ultimately dictate whether an employer may be held vicariously liable for that employee's acts.

Worker's compensation claims by employees, and vicarious liability claims by third parties, are covered under worker's compensation and general liability insurance policies. Such insurance coverage is essential for a dental practice.

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