Managing Employee Injuries and Disability and Occupational Safety

e. Skylarking or Horseplay Active participants in skylarking, horseplay or pranks are guilty of a material breach of their employment duties and are not eligible for compensation for any injury sustained during the activity. However, since pranks by fellow employees may be expected, and constitute a hazard of the job, nonparticipating employees who are injured are eligible for benefits. 23 f. Felonious Act An injury incurred during the commission of a felonious act by the injured employee and of which the injured employee is convicted, is not compensable. Labor Code Section 3600 a(8). g. Off-Duty Recreational and Athletic Injuries An injury which arises out of voluntary participation in off-duty recreational, athletic or social activity, not constituting part of the employee’s work related duties, is not compensable unless such activity was: 1) a reasonable expectancy of employment, and 2) either an express or implied requirement of employment. Labor Code Section 3600(a)(9). Labor Code Section 3600(a)(9) was enacted in 1978. Before then, it was held that if an employer sponsored a program of recreational or athletic activity, e.g., by providing facilities on their premises, or sponsoring a team, an injury incurred in such use would be considered to arise out of employment. 24 (During an employees’ Christmas party, liquor was served which resulted in the death of an employee in a later auto accident.) Whether Labor Code Section 3600(a)(9) has altered these rules as they pertain to use of on- premise recreational or athletic facilities while off duty is not clear. On the other hand, if the employee is on duty and incurs an injury from recreational activity, Labor Code Section 3600(a)(9) does not apply. Thus, a police officer who was in an on-call status, and who had permission to play in a game of softball with co-employees, was held to sustain compensable injuries arising from the game. 25 Thus, Labor Code Section 3600(a)(9) would not prohibit a finding of compensability if the athletic injury occurs during “duty” time.

Under the more recent cases, the test of compensability in this area boils down to the following questions:

 Did the employee believe that the activity was an implied or express requirement of employment?  Was this belief objectively reasonable? It may not be necessary for the employee to show that the athletic activity was in fact expressly or impliedly part of his employment, only that he reasonably believed that it was.

In one case, a police officer who was a member of the Special Response Team (SRT) injured his ankle while jogging off-duty. The officer contended that he ran to maintain his physical condition. SRT members were regularly required to pass a physical fitness test. 26 The Appellate Court directed the WCAB to grant benefits.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 24