Is An Injury Sustained by an Employee While Participating in a Workplace Wellness Program Compensable Under the Workers' Compensation Act?
This post was contributed by attorney Denise E. Elliott with assistance from attorneys John U. Baker and Kelley E. Kaufman. All are members of the McNees Wallace & Nurick Labor & Employment Practice Group. Denise practices in our Lancaster, Pennsylvania office, John practices in our State College, Pennsylvania office, and Kelley practices in our Harrisburg, Pennsylvania office.
With the new year upon us, chances are that your employees are making those age old resolutions to lose weight, get fit, and exercise more. And, if you sponsor or offer an employee wellness program, your employees might be looking to use the program to help them stick to their resolutions. But what happens if an employee exerts himself too much, pushes herself a little too far and hurts him or herself in the process? Are you, the employer, on the hook for such injury? Is the employee covered by workers' compensation? Maybe.
Ultimately, the answer to this question turns on whether the employee was in the course and scope of his/her employment when the injury was sustained. An employee is found to be in the course and scope of his/her employment when one of two situations is present: (1) where the employee is injured while actually engaged in the furtherance of the employer's business or affairs, regardless of where the injury is sustained; or (2) where the employee sustains an injury caused by the condition of the employer's premises, provided that the employee was required by the nature of his/her employment to be on the premises at the time of the injury. WCAB (Slaugenhaupt) v. U.S. Steel Corp., 376 A.2d 271 (Pa. Cmwlth. 1977); see also Scher v. WCAB (City of Philadephia), 740 A2d 741 (Pa. Cmwlth 1999). Cases analyzing the compensability of injuries sustained while the employee was engaged in physical fitness and/or wellness activities generally do so under the first of the two foregoing situations.
Although no Court in Pennsylvania has specifically addressed whether an injury sustained while participating in a wellness program is compensable under the Workers' Compensation Act, decisions addressing physical fitness injuries are instructive.
In Hemmler v. WCAB (Clarks Summit State Hospital), 569 A.2d 395 (Pa. Cmwlth. 1990), the Court found that an employee, who was injured while playing basketball on his lunch hour, was entitled to workers' compensation benefits. In so holding, the Court found that the employer encouraged its employees to engage in activities to better their health, relieve stress, and to have a better mental attitude in the performance of their work. The employer encouraged such activities through the use of postings on a bulletin board and by granting its employees access to company facilities, including the gymnasium, for physical activity. Based on these facts, the Court found that the Claimant was furthering the business interests of his employer when he was injured.
In Stanner v. WCAB (Westinghouse Electric Co.), 604 A.2d 1167 (Pa. Cmwlth. 1992), an employee who sustained a heart attack after working out at the employer's fitness center was found to be furthering the interests of his employer and was entitled to benefits under the Act. The key factors for the Court in Stanner were that: (a) the employer encouraged employees to use the fitness center, (b) flexible work hours were available to enable employees to use the facility, (c) the employer distributed brochures to employees advising that physical fitness benefits both the employee and the employer, and (d) the employer's benefits manager testified that employee participation in the fitness program reduced overall health care costs. The Court held that the "employer encouraged its employees' participation in the fitness program which benefited both Employer and the employees."
In SEPTA v. WCAB (McDowell), 730 A.2d 562 (Pa. Cmwlth. 1999), the Claimant injured his knee while running in a park, during non-working hours. Claimant testified that he ran several times a week in order to meet SEPTA's physical fitness requirements for transit police officers. The Court found that SEPTA had physical fitness guidelines for its officers, which were meant to benefit the officers, SEPTA, and the riding public. SEPTA encouraged its officers to meet the requirements by providing reimbursement for gym memberships, cash awards for the achievement of fitness goals, and by awarding bonus days to officers that met the requirements. SEPTA's fitness requirements were mandatory and failure to meet the requirements could result in disciplinary action. The Claimant testified that he ran only to meet SEPTA's requirements. Based on the foregoing factors, the Court found that the Claimant was engaged in the furtherance of SEPTA's business and thus, was entitled to workers' compensation benefits for his knee injury.
Finally, in McNany v. Travelers Ins. Co., 2008 WL 410254 (WCAB 2008), a Claimant who was injured while taking a walk during a work break was entitled to workers' compensation benefits. In McNany, the Claimant testified that his employer encouraged him to take walks outside of the building as a tool for stress management. Accordingly, the Claimant walked at least ten minutes per day. The Workers' Compensation Appeal Board found that because the employer encouraged the physical activity, which caused Claimant's injury, the Claimant was furthering the interests of the employer at the time he was injured. It was of no matter to the Board that Claimant's participation was voluntary or that the injury occurred off the employer's premises.
The Courts have consistently held that the phrase "actually engaged in the furtherance of the business or affairs of the employer" is to be liberally construed. Keeping in mind such liberal construction and applying the rationale of the above-four cases, an injury sustained by an employee engaged in an activity connected to an employer sponsored wellness program, likely would be compensable under the Workers' Compensation Act. Where fitness testing and achievement metrics are used to incentivize and reward employees who participate in the program, any time spent by the employee striving to achieve such metrics or goals likely would be deemed to further the interests of the employer. This especially will be true when the activity occurs on the employer's premises, during the work day, or during an employer sponsored or suggested activity. The bottom line is that employers clearly benefit from workforce wellness programs.
An employee's entitlement to workers' compensation benefits may be more tenuous if the injury is sustained off the employer's premises during an activity not directly related to the wellness program or not directly suggested by the employer. The risk of liability also may be somewhat reduced where the wellness program is managed by a third party vendor, all communications regarding the program come from such vendor, and the employer knows little to nothing about the participants in or activities of the program.
Despite the potential for liability, wellness programs can and do provide significant value to the workforce. Wellness programs benefit employers by promoting a healthier and more productive workforce and by helping to reduce health care costs. Employees also receive a benefit. Those who may not otherwise engage in physical or wellness activities, are induced to participate in wellness programs through employer offered incentives, health care premium bonuses, and suggested activities and, as a result, are healthier for it. For many employers, the benefits of promoting workforce wellness far outweigh the potential liability. If your company is implementing a workplace wellness program, or continuing an existing program, consider consulting counsel to develop wellness initiatives that promote the goals of the program while minimizing the risk of legal exposure.