Your humble blogger, before he hung out his own proverbial shingle and opened his own literal office, had the privilege of working for another law firm. One requirement of continued employment was a valid California Bar license, and one requirement of a valid California Bar license was keeping up with the State’s ridiculous MCLE minimums.
So, one day, as I sat diligently at my desk at home, writing out the answers to a take-home MCLE self-test, my elbow slipped, and my pencil pierced my hand. The cut wasn’t deep, but it of course became infected. As a result of the amputation, my other hand and arm became overused, causing carpal tunnel and a cumulative trauma. The inability to use both hands necessitated the use of my teeth as a gripping method, which of course caused a dental injury, as well as considerable psychiatric trauma. Needless to say, it wasn’t long before I faced a permanent total disability determination and was prepared to lay the entire claim at the feet of my employer.
After all, I was only injured because I was catching up on my MCLEs, which I was only doing to have continued Bar Membership, which I was only doing to continue my employment. AOE/COE established, right? Slam dunk…
Ok, now back to reality.
The Court of Appeal recently ruled on the claims of an applicant, one blessed with eternal youth, for injuries sustained at home while engaged in exercise for the purpose of staying fit for his job duties. In the case of Daniel Young v. WCAB and County of Butte (get it? eternal youth… because his name is always Young… it’s funny because… oh. You got it? What do you mean it’s not funny?), the Court held that when the employer states a vague requirement that employees must remain physically fit to perform their jobs, and neither provides guidelines for fitness activities or at-work physical fitness facilities, an injury sustained while doing jumping jacks at home is compensable under Labor Code section 3600(a)(9).
Sergeant Young was employed as a correctional officer by Butte County. There was a general directive requiring him (and all other correctional officers and sergeants) to maintain physical fitness for the demanding job duties that often come with guarding inmates. Applicant testified that jumping jacks are his “warm-up” activity prior to engaging in other exercise to maintain his weight and general physical condition. Butte County neither provided a list of activities to be performed by employees to stay in shape, no did it provide opportunities during work hours to exercise.
Applicant’s position was clear: he exercised because he had to because his employer told him to. Defendant’s position was equally clear: no one told him to do jumping jacks.
Although the workers’ compensation Judge found the injury compensable, the WCAB reversed, relying on the case of City of Stockton v. WCAB (Jenneiahn), for the proposition that an injury sustained at home while preparing for a fitness test necessary for work is compensable, for an injury to stay in shape when no fitness test was on the horizon was not.
The Court of Appeal disagreed, instead reasoning that the test to determine if the “off-duty recreational, social, or athletic activity … are a reasonable expectancy of, or are expressly or impliedly required by, the employment,” was whether the employee subjectively believed the participation was required, and whether this expectation was objectively reasonable.
In this case, there appeared to be no question about the subjective belief by the applicant that he had to do these exercises and stay in shape as part of his job. On the other hand, the COA and the WCAB disagreed as to the objective reasonableness of this belief. There was no exam, except the initial hire fitness exam, and applicant would not be tested on his physical fitness. However, because of the vagueness of the order, the COA reasoned that the bar for what activities were objectively reasonable should be lowered.
The COA did encourage employers to avoid increased liability by limiting the scope of exercises required by the employer to maintain physical fitness.
What do you think, dear readers, is the Court of Appeal right on this one? My initial impression when reading this opinion was that there should be a distinction between an employer wanting an employee to develop and maintain a new skill, rather than the maintenance required for the skill or ability promised at the time of hire.
So, if you have to be able to lift 160 pounds and carry it for 20 feet to get hired, it should be understood that you have to continue to be able to do that to keep your job. By contrast, if the employer tells you, once hired, that you now need to be able to do something else, like learn and perform CPR, perhaps the injuries sustained in that pursuit should be compensable. Just a thought, dear readers.