May 27, 2016
by Krishna Balasubramani

Do you know your employer sponsored wellness program can create Workers Compensation Liability?

Krishna Balasubramani | Sather Byerly and Holloway, Oregon and Washington Employment Law, Workers Compensation, Longshore, and OSHA Defense AttorneysAn employee twisted her knee while walking – she was off the clock, on a lunch break, and walking off the employer’s premises. However, because she was walking as part of a “walking program” promoted by the employer, she was entitled to receive Workers’ Compensation benefits. Employees were not required to participate but were encouraged to participate in the program. The employer established certain walking paths and rewarded teams that logged the most miles. The injured employee changed her usual walking pattern so she could participate in the “walking program”.  In other words, the employer had a wellness program similar to that offered by many employers.

The parties agreed the employee was engaged in “recreational activity” but disagreed on whether it was “primarily for the worker’s personal pleasure.” The Board noted even if the activity in question was recreational or social, the injury may be covered if it was “incidental to an employment activity.” The Board found the employer failed to establish the activity was “primarily for the worker’s personal pleasure” because the employee was walking in the particular area the program had outlined and her supervisor “strongly recommended” participation in the program.

The next step was to determine whether the injury arose out of employment. Again, based on evidence that participation in the walking program “benefited the employer by increasing morale”, the Board concluded that the employee had not left her employment and her activity was incidental to her employment.

It is always noteworthy when an injury that happens off the employer’s premises while the employee is unpaid is found compensable. This raises the question as to whether other activities would also be work related such as: walking, biking or running programs; flu shot or other health clinics; family days or picnics; or holiday parties. The bottom line is any or all of these programs may create workers’ compensation exposure. Employers who want to avoid this exposure may consider offering the programs but (1) not offering rewards for participation; (2) not strongly “recommending” or “encouraging” participation; and (3) confirming in writing that the participation is primarily for the employee’s benefit.

If you want to review your policies or programs and discuss potential liabilities, feel free to contact any of the attorneys at SBH.

Laura Brown, 68 Van Natta 774 (2016).