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An employee who went out to smoke and crossed the street for a sandwich during an unscheduled break was entitled to workers’ compensation. The Commonwealth of Pennsylvania court found that these activities remained within the scope of his employment.
Stanley Henderson receives a Social Security Disability (SSD) due to his ongoing mental health issues. WP Ventures helps people on SSD benefits find part-time jobs. Henderson was placed by WP as a caretaker at a community center for seniors located in a public park in Philadelphia. As part of his job, he performed tasks such as cleaning, emptying bins, setting up events and basic maintenance tasks. He worked 20 hours a week and was paid by WP Ventures.
On the day of the incident, the community center was being repaired after a roof leak and Henderson could not perform his regular duties. At around 4:00 p.m. that day, Henderson decided to take a cigarette break and grab a sandwich from a local store on nearby Germantown Avenue. Henderson did not ask permission to do so, but testified that he agreed with his supervisor that if the supervisor was unavailable, Henderson could take limited breaks without permission. Just outside the building, Henderson fell to the ice and hit his head, suffering injuries. Henderson was helped back into the building and his supervisor called an ambulance to take him to the hospital. Henderson was unable to return to work due to his injuries and was fired from his job at the community center.
The Workers’ Compensation Judge (WCJ) awarded Henderson $130.50 a week and found he was injured in the course of his employment. The WCJ said, “The claimant (Henderson) was on a cigarette break when he slipped and fell on a catwalk outside the building in which he worked, and this was a minor deviation from employment that would fall under the doctrine of personal comfort.
However, the Board reviewed this decision, finding that because Henderson had left his work building to tend to his personal needs of smoking a cigarette and getting a sandwich, which were neither other in the course of the work he was performing for his employer, he was not able the course of employment when the incident occurred. Therefore, the Board found that he was not entitled to receive workers’ compensation benefits for his injuries.
Was Henderson’s smoke and sandwich break part of the job?
In any claims procedure, the employee bears the burden of proving that he is entitled to workers’ compensation. Pennsylvania workers’ compensation law states that for an injury to be covered by workers’ compensation, “the injury must have occurred in the course of employment and the employee must actually be engaged in the work.” furthering the employer’s business or affairs, whether on the employer’s premises or elsewhere 77 SP §411(1).
In determining whether a workers’ compensation award should be upheld or denied, Pennsylvania courts use a case-by-case investigation to determine whether the facts support an award. There is no black and white test for this purpose, but rather whether a worker was within their scope of work is a question of law and must be decided by the court on an individual basis. Trigon Holdings, Inc. v. Workers’ Comp. Appeals Chamber. (Griffith), 74 A.3d 359, 362 (Pa. Cmwlth. 2013),
In this case, the relevant facts are as follows:
- Henderson was away from his work premises when the injury occurred.
- He was on his way to smoke a cigarette and grab a sandwich.
- He slipped and fell on the ice, hitting his head on the pavement.
The precedent on this issue is clear. The courts have always held that “neither small temporary departures from work to attend to personal comfort, nor inconsequential or innocent departures interrupt the course of employment”. The Baby’s Room c. Workers’ Comp. call boulevard (Stairs), 860 A.2d200, 203 (Pa. Cmwlth. 2004). The personal comfort component is what remains at issue in this case.
The courts have drawn a distinction between fixed breaks and meal breaks when an employee is essentially relieved of duty for a period of time, and personal comfort breaks which occur because the employee is waiting for something to do or instructions from the employer. Cigarette breaks are generally considered a personal convenience in the context of employment. Here, the Court found that to the extent that Henderson went out to smoke a cigarette, it would follow that this action was covered as part of his employment.
As for taking a break for a meal, the courts are more varied on this subject and it depends on the specific facts of each case. Generally, courts have drawn the line and concluded that a worker is still on the job when their time away from the job site is:
- Informal (not a set lunch or break)
- The goal is to engage in personal comfort of a physical nature such as a cigarette break or obtaining food.
- Must be brief enough that the course of the job is not broken. Rest of the Hoover House., 103 A.3d at 444.
This principle does not apply, however, when the employee is on lunch or a formal break and is more likely to exercise a higher degree of autonomy. In such situations, employees often engage in activities outside the realm of immediate personal needs.
In this case, Henderson testified that he was allowed to take a smoke break or take food without asking permission if his supervisor was not readily available. Before falling, Henderson planned to walk to a sandwich shop across the street for food, which was an establishment not owned or controlled by his employer. His activity outside of work was limited to satisfying his immediate personal needs – cigarettes and sandwiches – and for no other reason. WP Ventures argued that because he left for a smoke break AND a sandwich, it was not in the job lineup. They claimed that if he had only gone to get a cigarette it would clearly have been covered, but that was not the case here.
Where the injury occurred is not as important as whether Activities were minor deviations for personal comfort or recreation. Henderson’s activities were described as informal activities that were to take place over a limited period of time. He was not on a planned or formal break, but rather was waiting for something to do while the leak was fixed in the building.
The Commonwealth Court found that Henderson’s activities were within the scope of his employment and therefore his injuries should be compensated.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.