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Ask the Experts: Waivers

My district recently started an optional fitness group for our employees. If an employee is injured while participating, is that a workers’ comp claim? Would it help to have them sign a waiver?

Contributed by David J. Dworkin, Partner Dworkin, Chambers, Williams, York, Benson & Evans P. C.

An injury is not compensable if it occurs as a result of an employee’s participation in a voluntary recreational activity or program, regardless of whether the employer promoted, sponsored, or supported the recreational activity or program1. Likewise, an injury occurring while an employee is relieved of and is not performing any duties of employment, regardless of whether such person is utilizing, by discount or otherwise, a pass, ticket, license, permit, or other device as an emolument of employment is not compensable2.

On the other hand, an injury will be treated as work related if participation is required or encouraged by the employer, or if the employer derives some substantial benefit from the activity beyond improvement of morale3.

Example 1:

Company picnic includes a softball game. Employees who voluntarily participate in the game and get hurt are not covered. However, it is compensable if the injured person’s job included organizing the picnic and softball game because their participation was not entirely voluntary.

Example 2:

When exercise benefits the employer the injury may be compensable. In Price v. Industrial Claim Appeals Office, a prison guard and a police officer were injured in separate incidents while engaging in self-directed exercise while off duty and away from the workplace. Both testified that their employers told them their lack of fitness would adversely affect their employment status. The supreme court held that, to determine whether such injuries are compensable, a court should look to the following factors:

  1. whether the injury occurred during work hours;
  2. whether the injury occurred on the employer’s premises;
  3. whether the employer initiated the employee’s exercise program;
  4. whether the employer exerted any control or direction over the employee’s exercise program; and
  5. whether the employer stood to benefit from the employee’s exercise program.

The court said that, when considering these factors, it gave greater weight to the first two factors because the “time and place of injury are particularly strong indicators of whether an injury arose out of and in the course of the employee’s employment.” Id. at 211.

Next, we look at your proposed release. As you indicated, the release can’t hurt but it will not be controlling as far as workers’ compensation claims go. On the other hand, if worker’s compensation does not apply, the injured person is free to pursue a claim in tort for negligence, etc. The release may help, but not totally prevent, those claims; especially in the event of significant injury or death because the release applies to “ANY OF MY CHILDREN, PERSONAL REPRESENTATIVES, ASSIGNS, HEIRS AND NEXT OF KIN.”

About the author:
David J. Dworkin is a founding member of Dworkin, Chambers, Williams, York, Benson & Evans P.C. He attended the University of Colorado School of Law and was named “Top Lawyer” in 5280 Magazine in 2015, 2016, and 2017.
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