An employee who stepped outside for a smoke and to walk across the street for a sandwich on an unplanned break was entitled to workers compensation. The Pennsylvania Commonwealth Court found that these activities remained within his course of employment.
Stanley Henderson receives Social Security Disability (SSD) due to his ongoing mental health conditions. WP Ventures assists people receiving SSD benefits find part-time jobs. Henderson was placed by WP as a custodial worker at a senior citizens’ community center located in a public park in Philadelphia. As part of his work he completed tasks such as cleaning, emptying trash, setting up for events and basic maintenance duties. 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 complete his usual work tasks. At about 4:00 p.m. that day, Henderson decided to take a cigarette break and get a sandwich from a local shop on nearby Germantown Avenue. Henderson did not ask permission to do this, but testified that he had an understanding with his supervisor that if the supervisor was not available, Henderson could take limited breaks without permission. Just outside the building, Henderson fell on 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 discharged from his employment at the community center.
The Workers’ Compensation Judge (WCJ) awarded Henderson $130.50 per week and concluded that he was injured in the course of his employment. The WCJ stated, “Claimant (Henderson) was taking a cigarette break when he slipped and fell on a walkway outside of the building in which he was working, and this was a minor deviation from employment that would fall under the personal comfort doctrine.”
The Board revised this decision, however, finding that because Henderson left his work building to attend to the personal needs of smoking a cigarette and getting a sandwich, neither of which were in furtherance of the work he performed for his employer, he was not in 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 & Sandwich Break Within the Course of Employment?
In any claims proceeding, the employee has the burden of proving that they are entitled to workers’ compensation. The Pennsylvania Workers’ Compensation Act states that for an injury to be covered by workers’ compensation, “the injury must have arisen in the course of employment and the employee must actually be engaged in the furtherance of the business or affairs of the employer, whether upon the premises of the employer or elsewhere.” 77 P.S. §411(1).
In determining whether an award of workers’ compensation should be upheld or denied, the courts in Pennsylvania utilize a case-by-case inquiry to determine whether the facts support an award. There is no black and white standard for this purpose, but rather the question of whether a worker was within their scope of employment is a question of law and must be determined by the court on an individual basis. Trigon Holdings, Inc. v. Workers’ Comp. Appeal Bd. (Griffith), 74 A.3d 359, 362 (Pa. Cmwlth. 2013),
In the case at hand the relevant facts are as follows:
- Henderson was outside of his work premises when the injury took place.
- He was on his way to have a cigarette and grab a sandwich.
- He slipped and fell on ice, hitting his head on the sidewalk.
The precedent on this question is clear. Courts have consistently held that “neither small temporary departures from work to administer to personal comforts, nor inconsequential or innocent departures break the course of employment.” The Baby’s Room v. Workers’ Comp. Appeal Bd. (Stairs), 860 A.2d200, 203 (Pa. Cmwlth. 2004). The personal comfort component is what remains at issue in this case.
The courts have distinguished between set break and meal periods when an employee is essentially relieved of his work duties for a certain amount of time, and those breaks for personal comforts that occur because the employee is waiting for something to do, or for direction from the employer. Cigarette breaks are generally considered personal comfort within the course of employment. Here, the Court found that to the extent Henderson stepped outside to smoke a cigarette it would follow that this action was covered as within the course of his employment.
As for taking a break to grab a meal, the courts are more varied on this topic and it depends on the specific facts of each case. Generally, the courts have drawn the line and found that a worker is still in the course of employment when their time away from the worksite is:
- Informal (not a set lunch or break time)
- Purpose is to engage in a personal comfort of a physical nature such as a cigarette break or obtaining food.
- Must be brief enough so that course of employment is not broken. Hoover House Rest., 103 A.3d at 444.
This principle does not apply however when the employee is on a formal lunch or break and is more likely to exercise a higher degree of autonomy. In situations such as these employees often participate in activities outside the realm of immediate personal needs.
In this case, Henderson provided testimony that he was allowed to take a cigarette break or grab food without asking permission if his supervisor was not readily available. Before he fell, Henderson was planning to walk to a sandwich shop across the street to get food, which was an establishment not owned or controlled by his employer. His activity away from work was limited to fulfilling immediate personal needs–cigarette and sandwich–and for no other reason. WP Ventures argued that because he left for a cigarette break AND a sandwich it fell outside the range of course of employment. They asserted that had he only gone for a cigarette it would clearly be covered, but that was not the case herein.
The location where the injury took place is not as important as whether the activities were minor deviations for personal comfort or leisure. 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 from work, but rather was waiting for something to do while the leak was fixed in the building.
The Commonwealth Court concluded that Henderson’s activities fell within the course of employment and thus his injuries should be compensated.