Rule the Rules of Workplace Wellness Programs by JoAnn Eickhoff-Shemek & JoAnn Eickhoff-Shemek

Author:JoAnn Eickhoff-Shemek & JoAnn Eickhoff-Shemek
Language: eng
Format: epub
ISBN: 9781634257794
Publisher: American Bar Association
Published: 2017-01-15T00:00:00+00:00

Workers’ Compensation and Public Safety Officers

Many workplace fitness/wellness professionals design and deliver exercise programs for public safety workers such as police officers and firefighters. Major goals of these programs are to help prepare these workers for the physical demands of the job48 and to help reduce injuries while performing the job (and thus subsequent workers’ compensation claims).49 Again, because workers’ compensation is based on individual state laws, court opinions as to whether these workers are entitled to workers’ compensation for injuries incurred while engaging in fitness and recreational programs vary from state to state. For example, the five-factor test set out by the Colorado Supreme Court may or may not be used in other states. Some courts have relied upon a three-prong test to determine if an injury was compensable: (1) Was the activity on the premises? (2) Was the activity required by the employer?, or (3) Did the employer derive a substantial benefit from it?50

The weight that courts accord to each factor can also vary. For example, one court awarded compensation to a police officer injured while participating in a benefit basketball game, and another court rejected the claim after applying the same test.51 Regarding the requirement factor, some courts have ruled that injuries are not compensable unless the employer required the employees to participate in a specific activity as a condition of employment; other courts have awarded compensation when an employer encouraged employees to participate in the activity or derived substantial benefit from the activity.52

City of Kenosha v. Labor & Industry Review Commission 53

In this case, the City of Kenosha appealed a decision of the Labor and Industry Review Commission (LIRC) that a firefighter suffered a compensable injury while playing basketball with fellow firefighters and while on active duty at the time. The city claimed that the “well-being activity exclusion” found in Wis. Stat. § 102.03(1)(c) prevented the firefighter from receiving workers’ compensation benefits. This exclusion, in part, stated:

An employee is not performing service growing out of and incidental to employment while engaging in a program, event, or activity designed to improve the physical well-being of the employee, whether or not the program, event, or activity is located on the employer’s premises, if participation in the program, event, or activity is voluntary and the employee receives no compensation for participation.54

The city contended that at the time of the injury, all three prongs of this exclusion clause were satisfied: (a) the employee was engaged in an activity designed to improve his physical well-being, (b) his participation was voluntary, and (c) he received no compensation for participation. The court stated that the city would have to show that all three criteria were met to win its case. The court did not discuss the first two prongs, but did indicate that the city failed on the third prong because the firefighter was being compensated by the city to stand ready at the fire station at the time of his injury.

In his testimony, the city’s fire chief explained that “it was common for on-duty firefighters to play basketball during their shifts ….

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