According to Section 11 of the Illinois Workers Compensation Act, accidental injuries incurred while participating in voluntary recreational programs – including but not limited to athletic events, parties, and picnics – do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion does not apply when the injured employee was ordered or assigned by his employer to participate in the program.

In general, relevant factors to be considered are:

• whether the petitioner’s participation was required as a condition of his employment, whether his compensation was contingent on his participation;
• whether employees were disciplined if they did not participate in the program; and,
• the extent to which the employer benefited from the employees’ attendance at the outing.

In terms of the case law on this issue, where an employee is given an option to either attend a recreational activity and be paid, take a day off without pay, or give up a personal/vacation day in order to be paid, the Illinois Appellate Court has held that it is inferred that the employee has been ordered or assigned to participate. (Woodrum v. Industrial Com’n, 336 Ill.App.3d. 561).

However, where the recreational activity is scheduled on a regularly scheduled business day and employees are given the option to either attend or to work the regular job all day and be paid for a full day regardless, the Illinois Appellate Court has held that the employee was not ordered or assigned to attend. (Gooden v. Industrial Com’n, 366 Ill.App.3d 1064). The court in the Gooden case contrasted the facts from the Woodrum case by noting that in Woodrum, employees were given the choice to attend or not attend the company event, but if they did not attend they would not be paid. In the Gooden case, the employees could have worked the regular job and would be paid whether they attended or not.

During the initial investigation into any injuries reportedly sustained during a recreational activity, it is important to confirm whether the employees were given the choice to work their regular day and be paid instead of attending the recreational event. As always, it is important to obtain any evidence of this via written correspondence or witnesses who can confirm verbal announcements. If you have any questions as to how these situations can best be investigated, please feel free to contact us about scheduling a seminar on the topic such as our recent presentation on this issue in conjunction with the Illinois Chamber of Commerce.

Thanks to I&F attorney Allison Mecher for this excellent summary of an all too common issue for employers.  Allison represents Illinois employers from the firm’s Chicago offices.