By: James DaFonte, Associate, Miami

As the holiday season rolls around, it is always a good idea to provide a refresher on the compensability of injuries at holiday parties. Over the next few months, there will likely be claims trickling in from the festivities. Outlined below are a few pointers to consider in making those claim determinations.

• Do not require employee attendance. 

1. Few people want to go to a party that they “have to” go to. The idea of requiring people to show up for an event that they should want to go to rarely makes sense. If that is not reason enough, FS 440.92(1) provides that employee injuries sustained at recreational and social activities, such as parties, are not compensable unless the activity is “an expressly required incident of employment” AND the activity “produces a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.”   It is important to note that the employee making a claim arising out of such an event bears the burden of proof to establish both statutory requirements for compensability. An example focusing on the first requirement, in a 2014 case handled by Morgan Indek, Partner, in the Orlando District Office of the OJCC, held that “the totality of the evidence” is considered in determining whether a social activity was expressly required by the employer. Roberto Ayala v. EZ Corp, Inc., OJCC Case No. 14-003143WJC. The court exercised strict adherence to FS 440.92(1) in determining that the employee’s injury was not compensable despite the employer requesting employees to attend the Christmas party if they could because “encouraging participation and requiring participation are two totally different things.” Id.

• The employer must not derive any benefit from the party beyond improvement in employee morale. 

1. In determining whether the “benefit to the employer” requirement for compensability of FS 440.92(1) is met, courts have looked at a broad array of factors, including: (1) invitation or attendance of customers, (2) attempts to deduct the cost of the activity as a business expense, (3) using the activity as an opportunity to conduct other business, (4) using the activity to advertise for the business, and (5) having employees perform work at the activity. See Sterling v. Mike Brown, Inc., 580 So.2d 832, 835 (Fla. 1^st DCA 1991). Although satisfying one or several of these factors may result in the court determining that the claimant has satisfied the “benefit to the employer” requirement of FS 440.92(1), courts have made clear that “regardless of any other circumstance,” unless both of the statutory criteria are present, “an injury sustained during recreational or social activities is not compensable.” Whitehead v. Orange County Sheriff’s Dept, 909 So.2d 344, 345 (Fla. 1st DCA 2005).

• Do not have the party on company property or during a lunch or recreation period that normally occurs as part of employment.  

1. In any case, play it safe this holiday season by satisfying all three of the aforementioned criteria, and you will be gifted with a boost in employee morale in return for providing a holiday party, instead of claims for workers’ compensation benefits.
2. Although it is unclear whether satisfaction of this element would make a claim compensable in the absence of one or both of the requirements under FS 440.92 (1), it is clear that some courts still consider this factor in determining compensability of a claim. The controlling precedent on recreational and social activities, Whitehead v. Orange County Sheriff’s Dept., only addressed the first two factors in determining compensability for such activities in strict adherence with the language of FS 440.92(1). However, the 2014 final order from the Orlando JCC in Ayala v. EZ Corp, Inc. included this factor in determining the compensability of a claim arising out of a Christmas party, and may be something that would sway the judge in making a determination.