A

You are talking about the personal comfort doctrine and there haven't been many problems stemming from it. Virginia does have a case, Kraf Construction Services, Inc. v. Ingram, 437 S.E.2d 424 (1993), in which a construction worker was injured while crossing a street to get a soft drink at a convenience store. The worker filed for workers compensation benefits and the employer fought against it, saying the employee was not in the course of employment or even on the work premises. A Virginia appeals court said that an employee who seeks to satisfy his personal comfort is within the employment. However, there are restrictions on this notion: the employee has to use the facilities furnished to him by the employer, and is not supposed to go someplace where he has no right to be. In the Kraf case, the employee was not on the employer's premises; however, he was not deemed by the court to be “on a frolic of his own”, but rather “quenching his thirst in a conventional manner” and this act is “incidental to employment.

The Oregon Supreme Court and the Wisconsin Supreme Court have both weighed in on the issue. In Fred Meyer, Inc. v. Jody Hayes, 943 P.2d 197 (1997), the Oregon Supreme Court asked the question: was the conduct of the employee expressly or impliedly allowed by the employer? If so, activities personal in nature are reasonably incidental to employment and injuries suffered by the employee are compensable. In Sauerwein v. Department of Industry and Human Relations, 262 N.W.2d 126 (1978, the Wisconsin Supreme Court stated that “employees who … engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the departure is so great that an intent to abandon the job temporarily may be inferred, or unless the method chosen is so unusual and unreasonable that the conduct can not be considered as incident of the employment”. The court went on to list some activities that it considered allowable within the personal comfort doctrine: getting a drink, eating lunch on the premises, warming oneself, sleeping in a place provided by the employer, going to the bathroom, and going to get paid.

The bottom line is that not many workers comp problems arise over an employee's personal comfort activities, but such activities have to be reasonable and not expressly forbidden by the employer.