Canadian HR Reporter

T o promote healthy living and encourage physical fi tness, many employers provide on-site fi tness facilities, contribute to private gym mem- bership fees or sponsor recre- ational sport leagues. But could an employer be liable if a worker is injured while partici- pating in these fi tness initiatives? e answer is yes. Regardless of whether the ac- tivity takes place on or off an em- ployer's premises, an employer can be exposed to several types of liability, including workers' com- pensation surcharges, disability insurance claims, civil actions and occupational health and safety or- ders or penalties. Workplace safety and insurance In Ontario, for example, an injured worker may be compensated on a "no fault" basis (regardless of who is at fault) if the injury occurs "in the course of employment." In re- turn for this automatic compensa- tion, the worker is precluded from suing the employer in civil courts and collecting short- or long-term disability benefi ts. If the province's Workplace Safety and Insurance Board (WSIB) finds a fitness-related injury to be compensable, the re- lated costs will be applied against the employer's WSIB experience rating and could result in a costly surcharge. In determining whether an injury occurred in the course of employment, the WSIB considers the place, time and nature of the activity. Generally, an injury will be considered to have occurred in the course of employment if the injury occurs: •at the workplace or at a place where a worker might reasonably be expected to engage in work- related activities •during work hours or a reason- able period before or after work •while performing a work-related duty or an activity reasonably re- lated to employment. e WSIB will consider the cus- toms and practices of the employ- er (such as whether the employer has supported or sanctioned the activity in the past), as well as: •the extent to which the em- ployer controls or supervises the activity •whether the worker is compen- sated for participating •the extent to which the employer benefi ts from the activity (such as improvements to team morale or decreases in absenteeism) •whether the activity occurred in response to the employer's instructions or encouragement. The following two decisions of Ontario's Workplace Safety and Insurance Appeals Tribunal (WSIAT) help illustrate how these factors are applied. In Decision No. 999/94 in 1994, the employer established a fi tness centre at its workplace, at "great fi nancial expense," and promoted an exercise program. Participation was strictly volun- tary and classes were conducted after working hours with little em- ployer supervision. While exercising at the centre during non-working hours, an assembly line worker slipped and fractured her wrist. e WSIB determined the injury occurred in the course of employment and awarded her benefi ts. At appeal and before the WSIAT, the worker alleged she joined the program after receiving a disciplinary letter for excessive absenteeism. She sought to im- prove her physical condition and reduce her absences. e WSIAT accepted her argument, fi nding that participation had become a "condition of her continued em- ployment." e tribunal was also persuaded by the fact the activ- ity was pursued under the em- ployer's advice, on the employer's premises, using the employer's equipment and it was promoted through the employer's corporate policies. In Decision No. 1052/09 in 2009, a worker suff ered a shoulder injury after falling during a soccer game with a group of co-workers in the employer's parking lot. Loss of earnings were initially denied by the WSIB's appeals service division so the worker appealed. Although the injury occurred on the employer's premises within a "reasonable period after work," the denial of loss of earnings was upheld on the basis the game was "(not) a regular or even an oc- casional practice" and not sanc- tioned by the employer. Disability insurance and civil actions As noted above, where WSIA benefi ts are not applicable — ei- ther because benefi ts were denied or the worker opted out of cover- age (an option available in some circumstances) — a worker may have further options of apply- ing for disability insurance ben- efi ts and launching a civil action against the employer. If a civil action is commenced, the worker will be required to prove the employer was negligent. Health and safety Ontario's Occupational Health and Safety Act (OHSA) requires an employer to take every rea- sonable precaution to ensure the protection of its workers. This includes ensuring equipment is well-maintained and workers are properly instructed on how to use the equipment and what to do in the event of an accident. Failure to protect workers can result in orders, signifi cant fi nes and, in rare cases, imprisonment. To determine whether a fi tness- related activity creates liability under the OHSA, the following questions are considered: •Does the activity take place at the DO > pg. 10 FEATURES When working out doesn't work out Employer liability for workers' fi tness-related injuries By Andrew Ebejer and Carissa Tanzola HEALTH AND SAFETY Regardless of whether the activity takes place on or off an employer's premises, an employer can be exposed to several types of liability including OHS penalties. Credit: Photosani/Shutterstock

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