An employee may be entitled to benefits under the Workers’ Compensation Act if he or she sustains (1) an injury by accident (2) arising out of and (3) in the course of employment. N.C. Gen. Stat. § 97–2(6).
The phrase, “arising out of” refers to the origin of the injury while the phrase “in the course of” refers to the time, place and circumstances under which the injury occurred. Freeman v. Triangle Grading & Paving, Inc., 160 N.C. App. 415, 587 S.E.2d 100 (2003) (internal citations omitted).
The North Carolina Supreme Court has held that if the employee’s injury is “fairly traceable to the employment … or any reasonable relationship to employment exists,” it arises out of the employment. Id. (internal citations omitted). For an injury to be “in the course of his employment” it must be “‘under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer’s business.’” Id. (quoting Powers v. Lady’s Funeral Home, 306 N.C. 728, 730, 295 S.E.2d 473, 475 (1982). Activities undertaken for the employee’s personal comfort are considered part of the aforementioned “circumstances” element of the course of employment. Id.
North Carolina Supreme Court has thus recognized the “personal comfort doctrine.” Freeman, 160 N.C. App. 415, 587 S.E.2d 100 (internal citations omitted). The court stated “‘[a]n employee, while about his employer’s business, may do those things which are necessary to his own health and comfort, even though personal to himself, and such acts are regarded as incidental to the employment.’” Id. (quoting Rewis v. Insurance Co., 226 N.C. 325, 328, 38 S.E.2d 97, 99 (1946). The North Carolina Court of Appeals has added “[T]he fact that the employee is not engaged in the actual performance of the duties of his job does not preclude an accident from being one within the course of employment….” Id.
The North Carolina Court of Appeals further wrote that “‘[I]n tending to his personal physical needs, an employee is indirectly [benefitting] his employer.’” Id. As a result, the course of employment continues when the employee goes to the washroom, takes a smoke break, [or] takes a break to partake of refreshment….” Id. (citing Harless v. Flynn, 1 N.C.App. 448, 456–57, 162 S.E.2d 47, 53 (1968) (citations omitted)).
Because off-premises breaks have increasingly become a regular part of many employees’ daily routine, the Court has addressed them as well. In order for injuries sustained during an off-premises break to be compensable, there are a number of factors to consider. These factors revolve around the underlying notion of whether the employer, considering all the circumstances, is deemed to have retained authority over the employee. Freeman, 160 N.C. App. 415, 587 S.E.2d 100 (internal citations omitted). The factors are
(1)the duration of the break period; (2) whether the employee is paid during the break period; (3) whether the employer provides a place for employees to take breaks, including vending facilities; (4) whether the employer permits off-premises breaks, or has acquiesced in such despite policies against such breaks; and, (5) the proximity of the off-premises location where the employee was injured to the employment site.
Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 447, 503 S.E.2d 113, 117 (1998) (internal citations omitted).
Therefore, whether or not an employee is entitled to benefits for an off premises break will depend on the circumstances of that employee’s individual case. Some things to note, however, are that injuries by accident sustained during on-premises breaks for your personal benefit are typically compensable so long as the remainder of the workers’ compensation act is satisfied. The factors laid out by the North Carolina Court of Appeals in Shaw and subsequent cases provide the framework for determining the compensability of an injury by accident sustained by an employee during an off-premises break.