A recent case highlights the intersection of FMLA and workers’ compensation laws. Angela Samuel (Samuel) was employed by Progressive Casualty Insurance Co. (Progressive) as a retention specialist and primarily worked out of her home. While on a leave of absence covered by the Family Medical Leave Act (FMLA), Progressive notified Samuel that she needed to submit documentation in support of her FMLA request. Previously, Samuel’s documents in support of her FMLA leave were either never received or misplaced by Progressive.

On a Sunday evening, Samuel hand-delivered the paperwork to an unattended reception desk outside of a human resources department at a building on Progressive’s campus. As she was leaving, she slipped in a stairway and fell onto her right side.

Samuel filed a workers’ compensation claim and alleged she was injured in the course and scope of her employment with Progressive when she fell in the stairway. Progressive opposed the claim on the basis that the injury did not occur within the scope of her employment. The Industrial Commission and trial court found in favor of Progressive and denied Samuel’s claim.

In order to establish a compensable claim, an employee must demonstrate that they suffered an injury, the injury arose out the course and scope of the employee’s employment and that the incident caused the injury. An employee is in the scope of their employment when performing duties required by the employer in the service of the employer. If an employee is injured while performing purely personal business, the employee is not entitled to benefits under the Ohio Workers’ Compensation system. An injury that occurs while engaged in personal activities will only be compensable when the activities were instigated or subsidized by the employer.

In support of its case, Progressive submitted an affidavit from the Progressive employee who handled Samuel’s leave of absence, which asserted that Progressive did not direct Samuel to hand deliver the paperwork, Samuel previously submitted paperwork by email and fax, and that the Progressive policy specifically required the submissions to be made by fax, email or regular mail. In response, Samuel alleged that due to the misplacement of her prior submissions, she was compelled to hand deliver the paperwork. In addition, Samuel argued that despite Progressive’s policy, she was not prohibited from hand delivering the documents.

The court found that Samuel’s alleged injury did not occur in the course and scope of her employment with Progressive. In reaching this conclusion, the court focused on the fact that Samuel did not present any evidence that she was required to hand deliver documents on a Sunday evening. She could have delivered the documents during normal business hours to a responsible person, but instead chose to leave the documents on an unattended desk. The court concluded that Progressive did not instigate or subsidize Samuel’s delivery decision. Samuel v. Progressive Casualty Ins. Co., 2017-Ohio-388.

Although the court ruled in favor of the employer in this case, it can be inferred that the court would have found the employee had a compensable workers’ compensation claim if the employer had required its employee to hand deliver FMLA documents and the employee suffered an injury while making that delivery. To eliminate potential workers’ compensation claims, leave of absence policies may be written to instruct employees to produce documents in manners that do not involve the employees coming on-site. Similarly, paychecks could be direct deposited or mailed rather than picked up in person.

The same logic can be applied to any employer-directed activity – when sending an employee on an errand or requesting an employee attend an offsite event, employers may be held responsible should an employee sustain an injury in the course of those activities. This case reminds us that employers should consider these risks when directing employees to perform activities outside their normal job duties.