Risks of Employees Leaving Premises During Paid Break

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There is a line of Florida Workers’ Compensation cases dealing with the “Personal Comfort” doctrine. Included in the Personal Comfort doctrine are activities such as getting a drink of water, seeking a breath of fresh air, eating, smoking and the like. The theory used by the Courts is that allowing an employee to engage in “personal comfort” activities that essentially have nothing to do with work still provides a benefit to her employer as it gives the employee a chance to “recharge” which will make the employee more productive. These are activities that generally take place during a paid break as opposed to an unpaid longer lunch break.

For an accident to be compensable under this doctrine, the facts need to meet three criteria:

  1. The activity has been a traditional or routine part of the workplace experience. In other words, it is incidental to work;
  2. The employee’s participation in the activity has been held that to benefit the employer by producing a refreshed employee; and
  3. The injury results from either a work-created risk or a neutral risk.


Bayfront Med. Ctr. v. Harding, 653 So.2d 1140 (Fla. 1st DCA 1995):

A worker's attendance to personal comfort during a refreshment break is conducive to the facilitation of the employment.

Baker v. Orange County Board of County Commissioners, 399 So.2d 400 (Fla. 1st DCA):

A worker suffered a compensable accident when burned by electrical socks he wore to keep warm in cold weather.

B and B Cash Grocery Stores v. Wortman, 431 So.2d 171 (Fla. 1st DCA 1983):

An employee sustained a compensable accident when he dove into a river during a break between lawn maintenance jobs.

Citrus Memorial Hospital v. Cabrera, 388 So.2d 345 (Fla. 1st DCA 1980):

An employee sustained a compensable work related injury when she slipped and fell in the bathroom when taking a break to use the restroom facilities at work.

Holly Hill Fruit Products, Inc. v. Krider, 473 So.2d 829 (Fla. 1st DCA 1985):

An employee had a compensable accident when he left the employer's premises during a paid break to purchase a pack of cigarettes from a nearby convenience store. On his walk back to the employer's premises, the employee was hit by a car. The employer had an on-premises snack bar with a cigarette vending machine but the employee went to the convenience store across the street because it had a better selection of goods and was more economical. It was company policy to discourage such off-premises trips and employees were told to "clock out" before departing; however, this policy was not enforced.

For Employers looking to reduce risk, please consider the following (that must be strictly imposed in every instance):

  1. Have employees sign a document confirming that they have read and agree to follow the company policy prohibiting them from leaving the premises during paid breaks; and
  2. If an employee must leave the premises for any reason, the employee must clock out and is no longer considered to be working.

There is no Federal or State law requiring employers to carry an employee’s favorite brand of cigarettes or serve only Starbucks brand coffee. In fact, there is no requirement under the FLSA or Florida state law that an employee be given a paid break. Smokers are not considered a “protected class” entitled to special breaks nor is smoking a considered a disability under the ADA which requires Employers to provide smoke breaks as a reasonable accommodation.

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