HR Hotline: Are We Liable for Work Break Injuries?
Q: Should our company be worried about liability for injuries if our employees play basketball in an unused portion of our parking lot during work breaks?
A: You should be aware of the risks, but remain open to an arrangement that may provide your employees with health and morale benefits that justify accommodating their request.
Connecticut workers’ compensation law specifically excludes injuries resulting from an employee’s “voluntary participation in any social or recreational activities, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity.”
Unfortunately, common sense interpretation of state workers’ compensation statutory language is itself a somewhat dangerous activity, and the outcome of legal disputes in this context have been highly fact-specific.
The focus of analysis appears to have settled on the purpose of the employee’s actions rather than whether the employer approved or acquiesced to the activity.
So it’s likely that an employee’s injury would not be covered under your workers’ compensation insurance if it results from engaging in an activity, solitary or with others, the major purpose of which is for employee relaxation or enjoyment, even though on the employer’s premises, and even when there was employer approval or acquiescence to do so.
Some factors that may act as a “thumb on the scale” to tilt it towards a compensation claim would be: on the clock, pressure to participate in furtherance of an employer-sponsored wellness program, pressure to help bring glory to the company as part of the company-sponsored team, supervisory coercion to join in with an implied benefit to be delivered on the job, among others.
It is generally a cumulative effect, with no one being a determinative factor.
Keep in mind that even if an injury were not covered under your workers’ compensation insurance, it might still be pursued as a personal injury negligence claim, hopefully insured under your premises liability coverage.
A prudent approach in any event should include an initial and periodic examination of the area where the activity is to take place, removing any obvious or not so obvious obstacles, and a requirement that any equipment obtained for the activity is of sufficient quality so as not to create a hazard.
This can be specified as an employee responsibility, with permission continuing or revoked, depending on meeting this obligation.
Consider asking participants to sign a waiver as a condition of participation. It won’t protect you against an injury deemed to be covered under workers’ compensation, but may be of some value in the event of a negligence claim.
And lastly, you should review the possibilities with your insurance and legal advisers for more guidance.
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