IL WC Update: Taking the “Voluntary” out of Voluntary Recreation Programs
Pursuant to Section 11 of the Illinois Workers’ Compensation Act, accidental injuries incurred while participating in “voluntary recreation programs” do not arise out of and in the course of one’s employment. Section 11 even provides some examples of voluntary recreation activities that might be subject to this exclusion such as participation in “athletic events, parties and picnics.”
Despite the exclusion related to voluntary recreation programs, a recent Court of Appeals decision raises concerns about an employer’s liability for injuries incurred by its employees during such recreational activities. In Calumet School District #132 v. IWCC, a middle school teacher was injured while participating in a student/teacher basketball game. The Arbitrator found that the employee was not engaged in a voluntary recreation program and awarded benefits to the injured employee.
Although the Commission affirmed the arbitration decision, the Circuit Court reversed. In doing so, the Circuit Court concluded that the employee’s participation in the basketball game constituted precisely the type of voluntary recreation activity contemplated in the exclusionary provisions of Section 11.
Thereafter, the Court of Appeals reinstated the Commission decision. It appears that the court placed significant weight on the employee’s subjective beliefs about how his refusal to participate in the basketball game would impact his employment. At trial, the employee testified that he only agreed to play because he felt pressured to do so after receiving repeated requests from his principal. Also, the employee believed that if he declined to participate, it might reflect poorly in his impending performance review.
It should be noted that Section 11 of the Act states that the exclusion does not apply if the employee is “ordered or assigned” to participate. In this case, aside from the employee’s subjective beliefs, there was no evidence that he was ordered or assigned to participate. In fact, the employee testified that he was not ordered to participate. Likewise, the employer presented testimony that participation was strictly voluntary and that teachers were neither punished nor incentivized for their participation. While the trial testimony suggested that the employee was not ordered to play, the Court of Appeals did not see it this way. Instead, the court acknowledged that this may have been a “recreational” activity, but the employee’s participation was not voluntary.
Based on this ruling, it appears that the Court of Appeals has taken a narrow view of what constitutes a “voluntary recreation program.” Of specific concern is that the court relied heavily on the employee’s subjective beliefs and speculation about how his participation might impact his continued employment. The unfortunate implication derived from this decision and rationale is that employers may need to proceed with caution when asking or encouraging employees to attend and participate in recreational programs or activities such as those described in the Act. Otherwise, their employees might think, feel or believe (or testify) that their participation is more mandatory than voluntary.
Thanks to attorney Dane Kurth for the update on this issue. Dane can be reached at the Champaign office of I&F.