When do Recreational Activities Occur in ‘Course of Employment’ in Vermont?

Compliance Corner

In Vermont, if an employee is engaging in recreational activities with her employer and gets hurt, is it compensable? As Simply Research subscribers know, the Green Mountain State has rules to decide when a recreational activity is something an employee does in the course of her employment.

Here are the highlights.

If the injury occurred while engaged off the premises of the employer in a recreational activity that is available to the employee as part of the employee’s compensation package or as an inducement to attract employees, it shall not be considered to have occurred in the course of employment unless the Commissioner finds at least one of the following:

(1) The employer derived substantial benefit from the activity, beyond that of attracting labor or improving employee health and morale.

(2) The activity was reasonably part of the employee’s regular duties or undertaken to meet the expectations of the employer.

(3) The activity was undertaken at the request of the employer.

Case Example

Grather v. Gables Inn., 751 A.2d 762 (Vt. 2000). A ski resort worker's employer encouraged him to become acquainted with the town and the slopes. Throughout the winter, the worker skied during his time off, using his "ski bum" pass. On one of his shifts, the worker worked the breakfast shift, then went skiing, where he crashed into a tree and incurred severe injuries. The court held that the employer received a benefit sufficient to bring the worker's skiing within the course of his employment because the ski pass was part of the worker's compensation, and the use of the ski pass was contemplated by the parties from the beginning of employment. The ski pass was an inducement for employment in the "ski bum" position.

Workers' Comp 101: In the Grather case, the Vermont Supreme Court adopted a test from Colorado, announced by that state's top court in Dorsch v. Industrial Commission, 523 P.2d 458 (Colo. 1974), which detailed the following factors for determining whether a recreational activity is in the course of employment:

(1) The extent to which the employer derives substantial benefit from the policy beyond the intangible value of improvement of employee morale.

(2) The extent to which the recreational activity represents compensation for employment.

(3) The extent to which the obligations of employment create the special danger that precipitates the injury.

(4) Whether the use of the recreational activity was an inducement for employment.

(5) Whether the use of the recreational facility was originally contemplated by the parties at the time of employment.

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