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Scheduled Breaks: Time to 'Frett' About Compensability

November 05, 2020 BY Belinda Be

The Supreme Court of Georgia recently overruled the long-held “scheduled break exception” in Frett v. State Farm Employee Workers’ Compensation, 844 S.E.2d 749 (2020). Historically, Georgia courts determined, under the scheduled break exception, or scheduled lunch-break exception, that an injury sustained during an employee’s scheduled break while at work was not compensable because, during a scheduled break, the employee is pursuing an individual affair. See Ocean Accident & Guarantee Corporation et al. v. Farr, 180 Ga. 266, 178 S.E. 728 (1935).  

In the Farr case, the employee was off the clock and on his way to eat lunch when he slipped and fell while still on the employer’s premises. Because the employee was engaged in a personal affair and not a work-related activity, the court determined the injury did not “arise out of” employment and, therefore, was not compensable. In deciding whether the employee was engaged in a personal affair, the Farr court considered whether, at the time of the injury, the employee was on-the-clock, the employee was engaged in a work-related activity, and the employer had control over the employee’s activities.  

The facts in Frett were very similar to the facts in Farr in that both employees sustained injuries while on the employers’ premises when going to lunch during their scheduled breaks. However, the Frett Court of Appeals had difficulty applying the scheduled break exception concurrently with another workers’ compensation principle that the Supreme Court had not yet expressed its opinion on, the ingress and egress rule. This rule states an injury sustained while an employee is entering/exiting the employer’s premises to start/leave work is compensable. The issue was that the Court of Appeals were unsure which principle to apply because both principles could be applied to the facts but returned conflicting results. The Court of Appeals ultimately relied on the precedent set by Farr and decided to apply the scheduled break exception, finding the employee’s injury was not compensable.  

However, the Supreme Court did not agree with the lower court’s decision. In fact, the Supreme Court did not even agree with the its own decision in Farr. Generally speaking, to be compensable under Georgia’s Workers’ Compensation Act, an injury must be an injury by accident that “arose out of” and “in the course of” employment. First, the Supreme Court addressed whether the Frett injury occurred “in the course of” employment. It stated an injury occurred “in the course of” employment if, at the time of injury, the employee was engaged in activities of that employment, including activities “incidental” to the employee’s work. See Frett, 844 S.E.2d at 752; see also Hennly v. Richardson, 264 Ga. 355, 356, 444 S.E.2d 317 (1994). Examples of activities incidental to employment include going to and from work while on the employer’s premises (ingress and egress rule), acts of ministration such as drinking water or eating lunch, and going on a business trip (so long as the employee does not step away for personal reasons).  

The Supreme Court added that the fact that the Frett employee was not paid during her lunch break and had the freedom to do as she pleased were not dispositive of whether an injury was “in the course of” employment and, instead, focused on the nature of the employee’s activity at the time of the injury at the time of the injury. 844 S.E.2d at 754 (noting there may be close cases when these factors may play larger roles). Because the Frett employee was engaged in an activity incidental to her employment, the Supreme Court determined the injury occurred “in the course of” employment.  

The Supreme Court then analyzed whether the Frett injury “arose out of” employment. To meet this prerequisite for compensability, a reasonable person must be able to perceive a causal connection between the work conditions and the injury, or be able to foresee the injury as a risk of employment due to the nature of work. Id. In Frett, the employee sustained an injury when she slipped and fell on wet floor in the breakroom on the employer’s premises. Because a reasonable person could foresee a slip and fall injury from wet floor, the Supreme Court reasoned there was a causal connection and, consequently, found the injury “arose out of” employment.  

The Supreme Court further explained that the Farr court’s analysis to determine whether the injury “arose out of” employment fell short. Specifically, the Farr court did not assess whether there was a causal connection between the Farr employee’s injury and his employment conditions. Instead, the Farr court mistakenly based its decision, that the injury did not arise out of employment, on the nature of the activity the employee was engaged in, which determines whether the injury occurred “in the course of” employment.  

Although the Supreme Court overruled Farr, its decision does not change the requirements for compensability. Instead, it emphasized two separate prerequisites not to be confused with the other—that an injury is compensable where it occurred in the course of employment, looking at the nature of the activity at the time of injury, and arises out of employment, considering whether there is a causal connection between the activity and the conditions of employment.  

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)