FC&S recently received a question from a subscriber asking about liability coverage for injuries a restaurant employee suffered while on a lunch break from work. The details were a little sketchy (we don’t know the state or exactly how she was injured), but the gist of the situation was that the claimant had taken a meal break from waiting tables. She paid for the meal with rewards points. During the break she was “also watching her tables” and “would get up as needed,” apparently to serve them. Somehow she was injured during this time period.
The Workers’ Comp carrier denied coverage on the basis that the injury did not arise out of the course and scope of the claimant’s employment. The agent asked whether we thought the restaurant’s Businessowners’ policy should pay under the liability section.
Hey, wait a second: Are we sure Workers’ Comp wouldn’t apply for an injury that occurred during a meal break when the employee still was “watching her tables”?
Workers’ Comp statutes vary state by state, but many of them take the stance that injuries sustained during unpaid meal breaks are not compensable, nor are meal breaks taken away from the work premises. But most don’t stop there. New York, for example, appears to be fairly strict in not paying for injuries that occur off premises (or going to/coming from the work premises) or those that occur during unpaid meal times. As the New York supreme court’s appellate division stated, “lunch-time injuries are generally deemed to occur outside the scope of employment, except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break.” (The case is Grant v. New York City Transit Authority.) Exercising authority equaled Workers’ Comp coverage in the case.
In Grant the court determined an employee who was held up at gunpoint at a deli while on her lunch break, suffering psychiatric injuries, could not be compensated under Workers’ Comp. The court, in declining to allow such coverage, said there was no evidence that the employer retained authority or control over the injured employee during that time or “benefited from her going to the deli.”
Keep those words in mind.
In Illinois, a night-shift supermarket employee who was injured while playing ball in the supermarket’s parking lot was covered by Workers’ Comp for a broken ankle. In Eagle Discount Supermarket v. The Industrial Commission, the court called upon the doctrine of personal comfort, which has been cited in cases involving meal-time injuries. Under this doctrine, the course of employment is not considered broken by certain acts related to the employee’s personal comfort. Even activities not involving eating could invoke the personal-comfort doctrine, the court said.
Eagle night-shift employees had to ask to have doors unlocked so they could exit the store during lunch breaks. In this case, not only did the supervisor unlock the doors, he also turned on the parking-lot lights so the employees could play ball over the lunch break. As the court noted, Eagle knew, acquiesced and possibly participated in the employees’ routine games, so Workers’ Comp did apply.
The Georgia appeals court, in Miles v. Brown Transport Corp., said that the claimant could only recover for injuries sustained during a lunch break under Workers’ Comp because her lunch break was not strictly scheduled and “she often subjected herself to the performance of job-related duties during her lunch break.” Miles was injured as she was on her way to a hospital to visit a child. As she was exiting her workplace, a door was blown back, she fell and was injured.
At the time of her injury she was not doing anything involving work, but she often did perform job-related duties during other lunch breaks, so Workers’ Comp payments were her sole remedy.
It may not matter if the employee in our subscriber’s question was on a paid or unpaid lunch break. It may not matter whether she just “watched her tables” because she was asked to by her employer or not. The fact is that she was on the restaurant premises, was on a break but continued to perform some employment-related duties.
The restaurant employer would seem to benefit from a waiter attending her tables, even if only peripherally, during a meal break. The employer could have stopped her from doing so but didn’t.
It seems like Workers’ Comp to me.