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Walking into a workers’ comp claim?

Employer wellness programs are an important strategy in injury prevention, but some activities could be compensable.

posted March 31, 2017

By Beth Cupani, SAIF attorneyEmployer wellness programs

QIf I sponsor a fitness program at work and an employee is injured while exercising on a break, will it be covered by workers’ compensation?

AIt depends—every case is different.

First, it’s important to note that SAIF wholeheartedly supports programs to improve employee well-being. We know that healthier employees are less likely to be injured on the job—and, if they are injured, healthier employees tend to recover more quickly.

But employers also should know that there may be an increase in workers’ compensation liability associated with such programs. Employers should carefully weigh the advantages of employer-sponsored health improvement activities against any potential liability.

Wellness activities may be compensable.

The Workers’ Compensation Board recently considered a case involving injuries that were sustained on a break while an employee was participating in such a program. The board found the employee’s injuries compensable.

The employee was enrolled in an optional employer-sponsored walking program, complete with pedometer and associated incentives. Employees received punches on a punch card for completing walking routes that were mapped out by the employer. The employee’s supervisor encouraged her to walk, and participation in the program was “strongly recommended.”

While walking on the employer-designated route (off premises) during an unpaid lunch break, the employee twisted her knee. The board rejected the employer’s argument that the injured worker was walking primarily for her personal pleasure. Instead, the board applied the “personal comfort doctrine,” which says that a worker remains in the course and scope of employment if they engage in an activity that bears a sufficient connection to their employment, even if it is not a work-related task.

Compensability is determined by many factors. These factors could include whether the employer actively encourages participation or allows the activity, whether the employer also benefits from the activity, and whether the employer has increased the risk of injury by mapping an unsafe walking route.

The board found the claim compensable, reasoning that the employer benefited from the program and encouraged participation. The board also found that the employer had exposed the injured worker to an increased risk of injury because the walking route took employees through a congested area, and the employer provided extra incentives for walking outside. Laura Brown, 68 Van Natta 774 (2016).

In its opinion, the board noted that not every injury occurring during a lunch break or employer-sponsored walking program is compensable.

What can you do?

To minimize the chance of a claim, make it clear to employees that participation in a health improvement program is optional and voluntary. Be aware that providing proposed exercise routes or extra incentives for using certain routes could result in increased liability if there is an injury on the route.

Having employees sign a traditional liability waiver would not be effective. However, having employees sign something that says they understand participation is completely voluntary and for their own enjoyment might be.

As with any workers’ comp claim, the outcome depends on the specific details of the case. The bottom line: With careful planning, your employee wellness program can be a win for everyone.

Get advice

Get adviceRemember, this case law only addresses workers’ compensation. Other issues of liability may come up as well, and you may wish to speak to an attorney before starting a wellness program.

If you don’t have an attorney, check out the Oregon State Bar’s referral service. Or contact them at 503.684.3763 or 800.452.7636.

The Bureau of Labor and Industries also maintains a free information line to answer employment law questions at 971.673.0824.