ADJ15490866 · October 6, 2023

Applicant had a reasonable belief that going to the gym was expected by the employer and that belief was objectively reasonable, supported by testimony and facts that officers are required to maintain physical fitness and the gym was paid for by the employer.

From the decision · page 4The matter proceeded to trial on June 15, 2023, with applicant and Captain Eric Smith testifying. The sole issue for trial was whether applicant catching covid-19 while out on administrative leave at 24 Hour Fitness, was AOE/COE.

Applicant was on paid administrative leave and required to maintain physical fitness, with gym access paid for by employer but police gym inaccessible due to leave status.

Favours Applicant prevailed

Supported applicant's reasonable belief that gym attendance was expected and necessary for employment fitness.

From the decision · page 3the applicant (herein after Applicant), while employed as a sergeant for Richmond police department, was put on paid administrative leave on [in] March 2019. While out on leave, she was required to be home from 8 am to 5pm and was required to report to her supervisor any vacation or court appearance. While out on administrative leave, she was not allowed to use the police gym. In 2020, a shelter in place due to the covid-19 pandemic closed many businesses, including gyms, for several months. During the shelter in place, applicant gained weight and had pain in her back. In November 2020, businesses started reopening and applicant went to a 24-hour fitness gym. Pursuant to the stipulation by the parties, if working out in the gym is found to be part of employment, defendant agreed to pick up the covid-19 claim. Therefore, it is not disputed that she caught covid-19 at the gym.

Applicant caught covid-19 at the 24 Hour Fitness gym while on administrative leave, which was stipulated as work-related if gym attendance was compensable.

Favours Applicant prevailed

Established the injury event and its connection to employment conditions under the compensability test.

From the decision · page 3the applicant (herein after Applicant), while employed as a sergeant for Richmond police department, was put on paid administrative leave on [in] March 2019. While out on leave, she was required to be home from 8 am to 5pm and was required to report to her supervisor any vacation or court appearance. While out on administrative leave, she was not allowed to use the police gym. In 2020, a shelter in place due to the covid-19 pandemic closed many businesses, including gyms, for several months. During the shelter in place, applicant gained weight and had pain in her back. In November 2020, businesses started reopening and applicant went to a 24-hour fitness gym. Pursuant to the stipulation by the parties, if working out in the gym is found to be part of employment, defendant agreed to pick up the covid-19 claim. Therefore, it is not disputed that she caught covid-19 at the gym.

California Labor Code Section 3600(a)

Employer liability for injury arising out of and in the course of employment under California Labor Code Section 3600(a).

Applied to determine compensability of covid-19 infection caught at gym during administrative leave.

From the decision · page 4Section 3600, [all statutory references not otherwise identified are to the California Labor Code.] at subd. (a), provides that an employer is liable for workers' compensation for any injury "arising out of and in the course of the employment..." It requires, at subd. (a)(2), as a condition of employment, that "at the time of injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment" and, at subd. (a)(3), that the injury be "proximately caused by the employment, either with or without negligence."

Ezzy v. WCAB (1983) 48 CCC 611

Two-pronged test for off-duty activity compensability from Ezzy v. WCAB (1983) 48 CCC 611.

Applied to assess whether applicant's gym attendance was a reasonable expectancy of employment.

From the decision · page 4In Ezzy v. WCAB, the Court of Appeal established a two-pronged test for whether an employee's participation in an off-duty recreational, social, or athletic activity constitutes a reasonable expectancy of employment. It stated that courts must look at: (1) whether the employee subjectively believed that his or her participation in an activity was expected by the employer; and (2) whether that belief was objectively reasonable. Ezzy v. WCAB (1983) 48 CCC 611, 614.

Applicant and Captain Smith testified that officers are required to maintain physical fitness while on leave and that the gym was paid for by the employer.

From the decision · page 5The Ezzy test is clear that there is a twofold test. First, whether applicant had a reasonable belief that going to the gym was expected by the employer and 2) whether that belief was objectively reasonable. Defendant admits that both applicant and Captain Smith testified that officers are required to maintain physical fitness while on leave and there was a possibility applicant would undergo perishable skills testing. Applicant was unable to use the police gym because it was closed and because while out on administrative leave, she was prohibited from using it. In order maintain physical fitness while out on leave, it is reasonable that she should use the gym paid for by the Richmond Police department.