By: Faith Searles, Associate, Tampa

Whether happiness has a price tag is an age old question, and happiness and wellness in the workplace have come to take center stage in recent years. There is a greater emphasis being placed on employee wellness and positive corporate cultures. This phenomenon is most recognizable with recent media attention on companies like Google and In-N-Out Burger, whose employees continually rank them at the top of the list of best companies to work for. This is no accident. There is intrinsic value imparted to an employer in cultivating such a corporate culture.There are also numerous qualitative studies outlining the evidence of increased productivity and other benefits to the employer that fosters such goodwill in its corporate culture. Not only is productivity increased, but employers enjoy lower turnover rates and attract higher quality applicants that invest long term in the corporate future, contributing to a healthier bottom line. While there are benefits to be gained, what risks do companies like Google assume by installing bowling alleys and billiard tables, providing free gym memberships or kickball leagues, as reported in Forbes or Fortune? In other words, who is responsible when such recreational or social activities result in injury to an employee?

While the typical employer will not likely be installing a bowling alley or foam pit as Google has, consider more common activities like softball games, the annual Christmas party or an employer provided gym membership.   Florida Statute §440.092(1) outlines the compensability of injuries that occur during these types of activities. The current statute reads:

(1) RECREATIONAL AND SOCIAL ACTIVITIES Recreational or social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce 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.

Injuries suffered during recreational and social activities may be compensable depending on the accident’s date and the degree of employer involvement. For dates of accident prior to the 1992 amendment of the statute, if the factors listed below were present, they suggested that an injury suffered during an athletic event or social activity was compensable. The more factors present in a particular case, the more likely the accident was compensable:

1. The employee was pressured into participating, especially if the pressure is from management.
2. The team members included employees only.
3. The employee received pay while playing.
4. The employee received time off to play.
5. The employer provided transportation to and from the game.
6. The employer gained benefit from sponsorship via advertising or employee participation.
7. The injury occurred during a lunch or recreation period, on the premises, as a regular incident of the employment.

After the 1992 amendment, the First DCA noted, “It appears that the statutory change was enacted to avoid compensability in situations where the activity in question was neither part of the job duties of an individual nor expressly required by the employer.”  Thus, the factors elucidated in the case law prior to the amendment of the statute were whittled down. The focus of the JCC in determining compensability should be that the record supports a finding of both “an expressly required incident of employment,” and “a substantial direct benefit to the employer beyond improvement in employee health and morale” as required by the statute. Highlands County School Bd. v. Savage, 609 So.2d 133, 135 (Fla. 1st DCA 1992).

In other words, where such criterion under Section 440.092(1) is not met, the accidental injury is not deemed to have arisen out of the course and scope of employment. The statute requires both criteria be satisfied before an injury can be found compensable. The claimant carries the burden of proof in establishing:

1. an expressly required incident of employment; and,
2. a substantial direct benefit to the employer.

The Court expressly held that, unless both of these statutory criteria are present, regardless of any other circumstance, an injury sustained during recreational or social activities is not compensable. See Whitehead v. Orange County Sheriff’s Office, 588 So.2d 23 (Fla. 1st DCA 2005). 

Whether the injury is subject to Section 440.092(1) would be a question of fact to be determined by the JCC. Further, other factors must be considered, such as whether the injured worker is considered a “traveling employee” or some other category that could affect the application of Section 440.092(1). In this regard, it is always prudent to seek further clarification from the employer in conjunction with seeking an opinion from defense counsel prior to making a decision with regard to compensability on a claim occurring at a social activity or recreational event. If possible, contact the employer for further information regarding the location of the activity, participants and pay. Inquire into who attended the event, if clients or customers were invited, and whether uniforms or other marketing materials were present. Counsel will likely conference with the employer representatives involved in planning the event regarding the nature, reason, and purpose of the activity. When taking the injured worker’s initial statement, address the seven factors outlined above. Although no longer dispositive, they can be useful in parsing out the nature of the event. If further information is needed that is not readily available, consider electing to “pay and investigate” under Fla. Stat. § 440.20(4), better known as the 120 day rule.  If denial appears to be prudent, carefully consider the wording of the denial. Some language indicating the accident was outside of the “course and scope” of the employment may open the employer up to civil liability depending on the facts. By utilizing these tools and strategies, an adjuster can avoid picking up a non-compensable injury or denying a compensable one, triggering fees, penalties, and interest.

Faith Searles | Attorney