Personal Comfort Doctrine May Apply To Morning Break

A recent non published opinion is probably more important to employers than to the workers’ compensation community. This appellate court decision dealt with a compensated morning break.

The applicant was paid by the hour by her employer. The conditions of her employment were that she was compensated for two breaks during the day but was not compensated for her lunch. The applicant punched a time card upon arriving at work, at lunch time, and before leaving work each day. Her hours were from 8:30 a.m. to 1.00 p.m. and from 2:00 p.m.  until 6:00 p.m. Her uncompensated lunch break was from 1:00 p.m. until 2:00 p.m..

On the date of injury the applicant was very busy. She was unable to take her morning break at the normal time. She delayed her morning break until 12:45 p.m. She felt she would take her morning break in conjunction with the lunch hour. She went to the restroom to change clothes so that she might get some exercise by taking a walk. While she was untying her shoes she felt pain in her back. She finished changing her clothes and then punched out. She took some Advil. She then changed back into her uniform and punched the time clock to resume work.

The Workers’ Compensation Judge (WCJ) determined at a hearing that the injury was industrial because the state law requires a paid break in the morning and afternoon. Even though the applicant testified she was going to “work out” the WCJ determined she was still “on the clock” at the time of injury. Therefore, the injury did arise out of the employment and in the course of employment under the “Personal Comfort Doctrine”. The Board reversed the WCJ on Petition For Reconsideration and this appellate court reversed the Board.

The court cited other cases stating “(A)cts of the employee for his personal comfort and convenience while at work, such as taking a drink of  water, lighting a cigarette, warming himself, etc., do not interrupt the continuity of employment, and this exception is not limited to acts performed on the employer’s premises.”

“Under the ‘personal comfort’ doctrine, “the course of employment is not considered broken by certain acts relating to the personal comfort of the employee, as such acts are helpful to the employer in that they aid in efficient performance by the employee.” Therefore, this was found to be a compensable injury.

The question for employers to ask their corporate counsel is whether they can legally limit the types of activities an employee may engage in during compensated breaks. If they are permitted to limit these activities the limits should be made known to employees through an employee handbook.

Case: Castillo V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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