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Donovan: What Happens When a Worker Is Injured During a Break?

By Amy Donovan

Thursday, June 6, 2019 | 950 | 0 | min read

In December of 2016, the California Supreme Court decided the case of Augustus v. ABM Security Services Inc. The plaintiffs in the case were security guards employed by ABM and were required to keep their pagers and radios on, and respond when calls arose, even during rest periods.

Amy Donovan

Amy Donovan

Plaintiffs sued their employer for failing to provide rest periods as required by the California Labor Code and Industrial Welfare Commission (IWC). The California Supreme Court held that requiring employees to remain on-call or on-premises during rest periods violates IWC Wage Order 4, as well as Labor Code Section 226.7.

In short, the court concluded, “California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods.”

Some employers have expressed a concern for what happens if an employee becomes injured while off-premises during a 10-minute rest break. Is that injury compensable through the employer’s workers’ compensation coverage, even though employees are “relieved of all work-related duties and employer control” during that break?

Although the matter has not been squarely decided, there are California cases that indicate such an injury could be held compensable through the employer’s workers’ compensation coverage.

Labor Code Section 3600(a)(2) provides that an injury is compensable through the workers’ compensation system when, at the time of the injury, the employee “is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.” Whether an employee who is injured while off premises on a break is subject to workers’ compensation depends in part on whether he is compensated for the break time.

In Duncan v. WCAB, the plaintiff was injured while walking to a restaurant for an off-premises lunch break. In that case, the Court of Appeal held that under the “going and coming rule,” compensation will be awarded if an employee was being paid during the time he or she suffered an off-premises injury.

The Supreme Court in Augustus briefly discussed the issue of going off-site during a break by noting, “Because rest periods are 10 minutes in length, they impose practical limitations on an employee's movement. That is, during a rest period an employee generally can travel at most five minutes from a work post before returning to make it back on time. Thus, one would expect that employees will ordinarily have to remain on-site or nearby.”

Nonetheless, it is possible that an employee could become injured off-site during a 10-minute or a longer rest period or meal break. Whether that employee could successfully sustain a workers’ compensation claim would be a fact-driven inquiry, based on compensation, what the employee was doing at the time of injury, and whether there was an employer-related interest or benefit to the employee’s activity when injured.

Amy Donovan is vice president of legislative and regulatory affairs for Keenan and Associates' public agency property and casualty practice in Torrance, California. This entry is republished from Keenan's blog.


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