Should Employers Cover Bike-Share and Electric-Scooter Rentals?

 

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Bike-share and electric-scooter rentals are popping up in cities across the U.S., and employers may want to cover workers' membership or rental fees as a commuter perk or as part of a wellness program.

These services are part of what is known as smart mobility options—modes of transportation that people use instead of or in addition to gas-powered vehicles. The options include the use of ride-hailing or carpooling services, walking, biking, or riding an electric scooter.

These alternatives can help alleviate pollution and traffic congestion, but it's important for employers to know the risks before they offer such perks. Here are some points employers should consider.

Covering Commuting Time

An employee's travel time to and from work is generally not compensable, explained Jim Paul, an attorney with Ogletree Deakins in St. Louis.

Employers should clarify that even though they are subsidizing transportation costs, the commute to work doesn't count as working hours that would trigger wage payments or workers' compensation coverage, said John Kuenstler, an attorney with Barnes & Thornburg in Chicago and Los Angeles.

[SHRM members-only HR Q&A: Are there any pretax benefits we can offer employees struggling with high fuel and parking costs?]

Employers should have workers sign a waiver confirming that the transportation and parking options it offers are voluntary and that the employer is released from liability for injuries or harm caused by or to employees during their commute, Paul said. The waiver should also state that the employee accepts financial responsibility for any injuries caused to third parties while using the commuter benefit, he added.

Employer policies should state that employees are expected to abide by traffic and safety laws, wear a helmet, and be responsible for any citations, Kuenstler noted.

Accommodation Considerations

Employers should offer a variety of benefits that don't leave out workers with mobility issues, attorneys said.

Some workers with disabilities may not be able to use bikes or scooters, noted Soña Ramirez, an attorney with Clark Hill in San Antonio, Texas. Therefore, the employer may want to provide a comparable benefit, such as reimbursement for ride-hailing services up to the value of the scooter or bike services, she said.

Providing a general transportation or parking stipend to all employees to use however they want would be more inclusive than providing a specific commuter benefit, Paul said. Under a broad policy, employees could use the stipend for costs associated with driving a personal car for commuting, such as buying fuel, or for bus fare, bike rental, subway fare, or a ride-hailing service or other mode of transportation.

"Also, most cities have free or similarly priced transportation options for those in wheelchairs or who are otherwise limited in their mobility," he added.

On-the-Job Use

Some employees deliver goods, run errands or travel for other business reasons. So what happens if they want to use their rented bike or scooter while on the job?

The potential employer liability changes dramatically when employees use bikes or scooters during work hours, Kuenstler said. 

If employees use such services while performing their job duties and are injured, they could potentially make a claim of negligence against the employer or file a workers' compensation claim for benefits. "The employer needs to make sure that its workers' compensation and general liability coverage cover this type of scenario," Ramirez said. "Additionally, the employer may want to provide some type of safety training if an employee were to use such services during work hours."

It may be better to have employees use a company bike to ensure coverage and control over maintenance and safety issues, she added.

Employers may decide to prohibit all use of bike-share and scooter services during work hours or have employees sign an acknowledgment that is similar to the commuter-benefit waiver, Kuenstler said. Employees should agree to abide by all regulations, refrain from using mobile phones or earphones while operating the bike or scooter, wear a helmet, obey the speed limit and pay for any citations.

"Look at your current policies for employees who drive for work purposes," Kuenstler said, "and see if they can be updated to broadly cover bike and scooter services."

More Legislation Expected

Employers should note that electric-scooter services are fairly new, and cities and states are still figuring out how to regulate them.

In 2019, at least 15 state legislatures are expected to consider scooter bills, The Wall Street Journal reported. So far, California lawmakers have passed a bill that specifically addresses scooters, and a few states have vehicle laws that appear to include them, according to Douglas Shinkle, the transportation program director for the National Conference of State Legislatures. 

"I don't believe employers should get too far into the weeds on this issue," Paul said. It's a developing issue, and one that will involve a lot of legal and political debates, he added. 

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